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José Padilla and the War on Rights

ISSUE:  Fall 2004

On June 9, 2002, an American citizen named José Padilla disappeared into a legal black hole. The government says he is a dangerous terrorist, but they have never charged him with a crime. For the nearly two years since he was arrested at Chicago O’Hare Airport, Mr. Padilla has been held without trial in solitary confinement in a military brig. Now the Supreme Court’s decisions restricting the government’s power to detain “enemy combatants” in the “war on terror” may finally have brought him back into the light. Mr. Padilla will get his day in court. But Mr. Padilla’s saga remains a cautionary tale for all Americans concerned about preserving the liberty for which our ancestors fought and died, and which our troops overseas defend today.

I am one of Mr. Padilla’s lawyers, but I have never met him. All I have seen of him is the same menacing picture that you have, the one that appears in every newspaper article about his case. I remember the first time I saw that picture, which was accompanied by a headline announcing that by arresting Mr. Padilla, the government had foiled a plot to set off a “dirty” radiological bomb, possibly in Washington, D.C. I was relieved to hear that this alleged plot had been thwarted. The Washington suburb of Arlington, Virginia, is my hometown, and I watched the smoking Pentagon from my office rooftop on the morning of September 11 and worried that my best friend’s younger brother, a volunteer firefighter in Northern Virginia, might be in danger there. My mother was on an airplane to New York that morning, and until I got her cell phone call telling me she was safe, I was sick with fear. Even six months later, the threat of terrorism felt very personal to me.

I assumed that Mr. Padilla would be charged with a crime, that in the time-honored way he would be given his day in court, and that if the jury found him guilty, he would be locked up for a very, very long time. But that was not what happened.

Instead of charging Mr. Padilla with a crime, the president declared him an “enemy combatant.” Some people think that Congress gave the president the power to imprison people as “enemy combatants” in the PATRIOT Act, but that law says nothing at all about such detentions. In fact, the term “enemy combatant” does not appear in any statute passed by Congress, nor in any regulation, nor in any international treaty. Searching for additional powers following September 11, the government plucked the term from Ex parte Quirin, a World War II–era Supreme Court decision upholding the government’s right to put Nazi soldiers (whom the Court described as “enemy combatants”) on trial in military commissions rather than in civilian courts. From this narrow decision, the government extrapolated that the president could hold anyone he decided was an “enemy combatant,” without any real review by the courts, until the end of the “war on terror.” This theory was novel, to say the least. While the government has captured and detained prisoners of war on the field of battle in many past wars, never before has it claimed the power to designate American citizens, arrested in civilian settings, as “enemies of the state” who can be held forever at the whim of the president.

It was only once the government took away all of Mr. Padilla’s constitutional rights that I became involved in his case. For it seemed to me that if they could take away his rights, they could take away the rights of anyone. And that scared me more than the threat of another terrorist attack.

I am an international human rights lawyer. I do work in places like Bosnia and Rwanda, where tens or hundreds of thousands of people were killed because they were in the wrong ethnic group. I study countries like Chile, where thousands of people disappeared off the streets, never to be seen again, because they disagreed with the government. The reason I decided after law school to focus on international human rights rather than problems closer to home was that it seemed from where I stood that America was doing all right. We had some very ugly incidents in our past—slavery and segregation, the Japanese internment camps, and the displacement and slaughter of Native Americans for starters. Even today, not everyone in America is getting a fair shake. But we were founded on a set of ideals—liberty, equality and democracy—that ignited a fire of freedom worldwide. America was learning from its mistakes, and our current human rights problems seemed to pale in comparison to those in other countries.

I was shocked by the Padilla case. A system in which the government is allowed to lock up anyone it decides is an “enemy” without any trial or even the pretense of legal process seemed to me, frankly, like the kind of thing that happens in the messed-up third-world countries I spend most of my time thinking about, not what I expected out of America. And so, after following the case in the newspapers for a few months, I eventually volunteered to write an amicus, or “friend of the court,” brief for the retired federal judges supporting Mr. Padilla’s right to have his day in court. Amicus briefs are often filed by nonprofit activist groups like the ACLU, but it was highly unusual to have a distinguished group of retired judges (both Democrats and Republicans) weighing in with such a brief. As it turned out, they were not alone. By the time we got to the Supreme Court, there were dozens of briefs filed in Mr. Padilla’s case and the cases of the other enemy combatants, by everyone from retired judges and law enforcement officials to former prisoners of war to Fred Korematsu, a Japanese American who was interned in World War II and whose name has become synonymous with the case he lost in the Supreme Court in 1944, one of the most disgraceful moments in the Supreme Court’s history.

By the time I became involved in the case, Mr. Padilla had already been in jail for almost a year. He was initially arrested returning to the U.S. at Chicago O’Hare Airport on May 8, 2002, by civilian law enforcement agents. He was arrested pursuant to something called a material witness warrant, which allows an individual to be held so that he or she can give testimony in court or, in Mr. Padilla’s case, before a grand jury. The warrant had been issued by a judge in the Southern District of New York, the federal court that sits in Lower Manhattan. Mr. Padilla was transported by the government from Chicago to New York. Upon his arrival, the court there appointed a lawyer to represent him in the material witness proceedings, Donna Newman. Ms. Newman is a criminal defense attorney in private practice, and it happened to be one of the few days a year she takes court-appointed indigent clients. Little did she know what she was getting into.

Ms. Newman met with Mr. Padilla several times at the Metropolitan Correctional Center, where he was being held, and filed papers with the court seeking his release. A hearing was scheduled for Tuesday, June 11, 2002. Two days before that hearing, Ms. Newman got a call from a young lawyer in the U.S. Attorney’s office who was working on the case. He told her that the hearing was off. The president had declared her client an “enemy combatant” and the military had taken him away. At first, Ms. Newman thought the lawyer was joking with her. As the truth dawned on her, she was shocked.

At the time scheduled for the hearing, Ms. Newman appeared in court and filed a petition for a writ of habeas corpus, seeking Mr. Padilla’s release. Ms. Newman sat alone at her table in the courtroom, without even a client next to her. She had heard on television that her client had been taken to a military brig in South Carolina. As she looked at the swarm of high-ranking government lawyers across the room, she realized she needed help. The judge quickly appointed as cocounsel Andrew Patel, another local defense attorney who had worked on some high-profile terrorism cases.

Ms. Newman and Mr. Patel quickly plunged into a world of arcane legal precedents. It seemed obvious to them from grade school civics class that in America, the government was not allowed to lock someone up forever without giving him a lawyer and a trial, but the government’s case had a perverse, airtight logic to it: Mr. Padilla had no constitutional right to challenge his designation as a prisoner-of-war-like “enemy combatant” because enemy combatants have no constitutional rights. The government’s argument was circular but maddeningly slippery. Newman and Patel found themselves reading cases about the writ of habeas corpus from England in the 1600s, cases from the 1800s involving swashbuckling seizures of ships as prizes of war on the high seas, and obscure treatises on the Geneva Conventions and other laws of war.

Throughout this time, the government refused to let Ms. Newman and Mr. Patel communicate with their client in any way. The government chillingly explained that allowing Mr. Padilla to learn that a court was hearing his case might give him hope that he would some day be released: “Only after such time as Padilla has perceived that help is not on the way can the United States reasonably expect to obtain all possible intelligence information from Padilla… . Providing him access to counsel now … would break—probably irreparably—the sense of dependency and trust that the interrogators are attempting to create.” In court, the government claimed that they had the power to imprison Mr. Padilla until the “war on terror” was over, and the court had no power to intervene other than to make sure that there was “some evidence” to support the government’s decision. The “some evidence” the government pointed to was a written affidavit from a midlevel Pentagon official, who recounted information reportedly given to the government by unnamed confidential sources. The affidavit alleged that Padilla was part of a plot to build and detonate a dirty bomb in the United States but acknowledged that the plot was “still in the initial planning stages” and “there was no specific time set for the operation to occur.” (Deputy Secretary of Defense Paul Wolfowitz later stated publicly that “I don’t think there was actually a plot beyond some fairly loose talk and his coming in here obviously to plan further deeds.”)1 The government admitted that the information provided by its confidential sources “may be part of an effort to mislead or confuse U.S. officials” and that one of the sources “recanted some of the information that he had provided.” (Later press reports indicated that one of the confidential sources had given up Padilla’s name while being subjected to “water-boarding,” a form of torture in which the suspect is held down in a tub and made to think he will drown.) The government argued that the district court had no power to question the information in the affidavit and no authority to allow Mr. Padilla to come into the court to tell his side of the story. In effect, the government argued, the court’s power was limited to rubber-stamping the government’s decision to detain Padilla.

Rejecting the government’s Orwellian logic, in December 2002, the district court held that even under the lax “some evidence” standard, Padilla was entitled to present his side of the case in court, and ordered that Padilla be allowed to meet with his lawyers. The district court agreed, however, that the government had the power to hold an American citizen arrested on American soil as an “enemy combatant.” Seeking to avoid even the minimal challenge to its authority posed by the district court’s ruling, the government took an immediate appeal to the federal circuit court in New York.

It was at this point that I became involved in the case, filing my brief on behalf of the retired federal judges. Although I started out as an amicus, as the case progressed, I began working more and more closely with Ms. Newman and Mr. Patel. Not only had I read all the same obscure cases and treatises they had, I had actually read even more because of my background working on war crimes issues for the United Nations International Criminal Tribunal for the Former Yugoslavia in the Hague. I had the distinction of actually having owned a copy of the Geneva Conventions prior to September 11, 2001, a rare thing among U.S. lawyers. By the time the U.S. Court of Appeals for the Second Circuit heard the case in November 2003, Ms. Newman and Mr. Patel decided to let me share some of the argument time as an amicus.

A month after the argument, the court issued a ruling in our favor. Going even further than the district court, the court of appeals held that the government lacked authority to hold a U.S. citizen seized in the U.S. as an “enemy combatant.” Congress had not given the president such extraordinary power, and the president had no inherent power to deprive citizens of liberty in this way, the court held. The court rejected the government’s reading of Ex parte Quirin, the lynchpin of its case, noting that it had involved the congressionally authorized trial by military commission (with lawyers and full opportunity for the defense to be heard) of admitted soldiers in the German army. The case provided no support for the unilateral presidential detention without trial of an individual who denied that he was a soldier at all. Mr. Padilla had to be charged with a crime or released in thirty days, the court ordered.

Again, the government quickly appealed. Once the case reached the Supreme Court, Ms. Newman and Mr. Patel (casting a wary eye at the ever-growing crowd of government lawyers across the courtroom) decided to ask me to stop being a mere friend of the court and join the core legal team for Mr. Padilla. I accepted. Jonathan Freiman, an appellate lawyer from Connecticut and part-time instructor at Yale who had written an amicus brief in the court of appeals for a broad spectrum of groups (including the conservative CATO and Rutherford Institutes), also came on board, as did David DeBruin, a top partner at Jenner & Block, a leading Supreme Court litigation firm in Washington, D.C.

Shortly before the first round of briefs were due in the Supreme Court, the government finally decided, out of the goodness of its heart and without acknowledging that he had any right to counsel, that Mr. Padilla could finally speak to his lawyers. Ms. Newman and Mr. Patel had put in for the necessary security clearances back in December 2002, when the district judge had ordered access. They were finally allowed to go visit him in March 2004, but under the strict rules imposed by the military, they were not allowed to say or ask much—and they were not allowed to tell the court or the rest of the legal team, let alone the rest of the world, what Mr. Padilla had said. All they could really tell us was that after two years of incommunicado interrogation, Mr. Padilla was apparently very glad to see them.

The case was argued before the Supreme Court on April 28, 2004, on the same day as the case of Yaser Hamdi, an American citizen seized in Afghanistan and also held as an “enemy combatant,” and one week after the case concerning the Guantánamo detainees. Although any member of the team could have done the honors, in the end, I ended up making the oral presentation for Mr. Padilla to the high court.

The night after the case was argued in the Supreme Court, CBS broadcast the first photos of Abu Ghraib prison. That very morning, the government’s lawyer had responded to questions from the justices about torture by explaining that our government didn’t do that sort of thing. In the days that followed, more photos leaked, followed by memos justifying the potential abuse of detainees that were full of legal reasoning as contorted as the bodies in the photos.

After several weeks of this bad news, the government finally won more favorable headlines when the Justice Department held a press conference at which they finally revealed the “evidence” against Mr. Padilla—evidence that they had claimed for months would endanger national security if shared with a federal judge. Mr. Padilla, the government now claimed, had not really planned to set off a dirty bomb, but rather to blow up apartment buildings with natural gas. The government had his confession to this scheme now after months of interrogation,2 and it was a good thing he had not been given his constitutional rights or he might have gotten off. The government was not trying to influence the Supreme Court, the government lawyers explained, but rather the court of public opinion. Mr. Padilla, still locked away in solitary, had no chance to hear about or respond to the only trial the government had seen fit to give him so far, this trial in the court of public opinion. A good friend of mine who lives in a high-rise in New York City told me at a picnic that she had supported my work on the case until she learned my client might have plotted to blow up apartment buildings like hers; that had hit a little too close to home, and she was no longer sure he ought to have constitutional rights. She was only partly joking.

Two months later, on June 28, 2002, the Supreme Court issued decisions in the three cases—the Guantánamo case (Rasul v. Bush), Hamdi v. Rumsfeld, and Rumsfeld v. Padilla. The Court ruled in favor of the detainees in Rasul and Hamdi but bounced Padilla on a technicality. In Rasul, the Court held by a vote of six to three that the U.S. federal courts have jurisdiction to entertain habeas petitions from prisoners at Guantánamo, sending the case back to the lower courts to determine what precisely the rights of the prisoners were.

The Court’s decision in Hamdi was equally a defeat for the government but more confusing in the details. Only one member of the Court, Justice Thomas, agreed with the government’s position. Four justices thought the government had no authority at all to hold a U.S. citizen, even one seized on an overseas battlefield, as an “enemy combatant.” Leading the charge for this group was Justice Scalia, the Court’s most conservative justice, who explained that the government’s actions ran contrary to several hundred years of Anglo-American legal tradition beginning with the Magna Carta. Unless Congress suspended the writ of habeas corpus (a grave action the Constitution allows to be taken only in cases of “Rebellion” or “Invasion”), the government’s only constitutional option was to charge Mr. Hamdi with a crime or release him. Justice Stevens, the Court’s most liberal member, joined Justice Scalia. Justices Souter and Ginsburg reached the same conclusion about the government’s lack of authority but relied mainly on a statute (passed in the 1970s to prevent recurrence of the Japanese internment camps) that provided that “[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.” Since no act of Congress expressly allowed the detention of U.S. citizens as enemy combatants, these justices reasoned, Mr. Hamdi could not be imprisoned without criminal charges.

The other four justices, in an opinion written by Justice O’Connor, found that the government had authority to hold people who were “part of or supporting forces hostile to the United States or coalition partners” in Afghanistan and “who engaged in an armed conflict against the United States there.” But they also held that an individual like Mr. Hamdi—who, although he was apprehended in Afghanistan, claimed that he was not engaged in armed conflict against the U.S.—was entitled to access to counsel and a meaningful hearing at which he could present his side of the story and challenge the government’s evidence.

Although the Hamdi decision set the floor in terms of the rights of U.S. citizens to have access to counsel and a fair hearing on their status, it left open the question whether the government had any authority at all to detain as “enemy combatants” citizens who were not captured on the battlefields of Afghanistan. Did the government have the authority to detain U.S. citizens arrested in the U.S. as “enemy combatants”? Justice O’Connor’s opinion in Hamdi was careful not to say, noting that the Court’s finding of authority to detain fighters in Afghanistan was premised on a reading of the law based on traditional warfare. “If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel.” Detainees nabbed in the broader “war on terror”—a conflict that takes place everywhere, all the time, in which anyone walking down the street may be a combatant and which may last forever (in short, a conflict whose practical circumstances are entirely unlike traditional warfare)—were implicitly left for another day.

The Supreme Court dismissed the case presenting that very question—Mr. Padilla’s case—on a technical issue of court procedure. The lower courts had all found that the case had been properly filed in New York—which was hardly surprising, given that the government had initially brought Mr. Padilla to New York and then whisked him away in the middle of the night just before his court hearing there. But the Supreme Court disagreed. The Court held that the only proper defendant for the suit was the commander of the brig where Mr. Padilla was currently imprisoned in South Carolina, rather than Secretary of Defense Donald Rumsfeld, to whose custody the presidential order had entrusted Padilla. Thus, the Court found, the suit could be brought only in South Carolina, and not in New York. After two years, Mr. Padilla must wait a little longer for his day in court. Four justices dissented, arguing that the Court should reach the merits as soon as possible, for “[a]t stake in this case is nothing less than the essence of a free society.”

Within days, Mr. Padilla’s petition was refiled in South Carolina. At a minimum, he will receive the hearing that the Supreme Court’s decision in Hamdi guarantees. It is still possible—indeed probable—that the Supreme Court will rule that there is no authority to detain persons arrested in the U.S. as “enemy combatants.” But the litigation will take several months more to reach the Supreme Court again, probably not until after this fall’s election.

As for me, I still haven’t met my client. Perhaps this delay will allow me time to get a security clearance so I can finally see him. As I have worked on this case, I have often thought of Attorney General John Ashcroft’s menacing warning to civil libertarians: “To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends.”3 I take that more or less personally.

To those like Mr. Ashcroft who would scare liberty-loving people with phantoms of lost security, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies and pause to America’s friends. No one who watched the attacks on September 11 can deny that terrorism represents a grave threat to American security, but winning the war on terror also requires that we remain true to our ideals. Guantánamo, the photos of Abu Ghraib, the image of America as a nation above the law—none of these things has helped us in the fight against terror. Moreover, the government’s argument—that we must sacrifice human rights for security—presents a false choice. There is a balance to be struck, but it is far more nuanced than the current government recognizes.

Take the issue of detention. Many other democratic nations confronted with terrorist threats have enacted special measures for some kind of administrative detention of terrorists.4 These nations include the U.K.,5 Israel,6 and Spain.7 The administrative detention practices of many of these countries have been criticized by human rights activists, and many of these criticisms are legitimate, but it is notable that they all provide greater protection for human rights than does current U.S. practice with respect to so-called “enemy combatants.” First, these other nations have passed actual legislation authorizing detention of suspected terrorists. By contrast, the U.S. has relied on presidential fiat. Second, the laws of our democratic allies provide for access to counsel and judicial review of detention within a matter of hours or days—not months or years. In the U.K., for example, terrorism detainees are entitled to counsel and judicial review as soon as “reasonably practicable,” and in any event no later than 48 hours.8 Detainees in Israel are entitled to see a judge within 48 hours.9 In Spain, they are entitled to counsel and to be brought before a judge within 120 hours.10 And so on. Third, most of these laws provide for time limits on detention. The U.K.’s 2000 and 2001 antiterrorism laws allow the government to hold citizen detainees in administrative detention for only 48 hours, with extension to seven days possible only with a judge’s approval.11 Spanish detainees must be charged within 72 hours, which can be extended by another 48 hours only by a judge.12 Even where detention is indefinite, regular judicial review is required. Israel’s 2002 Incarceration of Unlawful Combatants Law, for example, requires that a district court judge review the status of each detainee every six months to determine if the captive is still a threat to state security or if there are other circumstances that justify release.13

Moreover, overseas courts have stepped in to guarantee detainees’ rights above and beyond those provided by legislation. In Marab v. IDF Commander in the West Bank, for example, the Israeli Supreme Court invalidated a military order that allowed investigative detention of Palestinians in the West Bank for 12 days without a judicial hearing. Rejecting the government’s claim that security necessitated the delay, the Court held that “this approach is in conflict with the fundamentals of both international and Israeli law,” which view “judicial review of detention proceedings essential for the protection of individual liberty.”14 Instead, the Court held, the detainee must be brought before a judge as promptly as possible.15 Similarly, in invalidating Turkey’s detention of suspected terrorists for more than 14 days without access to counsel or court, the European Court of Human Rights explained that although “the investigation of terrorist offences undoubtedly presents the authorities with special problems, it cannot accept that it is necessary to hold a suspect for fourteen days without judicial intervention.”16

These examples show that detention of individuals for more than two years without access to counsel or a hearing before a neutral judge is well beyond the bounds of what civilized countries allow nowadays, even when fighting terrorism. Moreover, it is fundamentally contrary to American values. As the U.S. Supreme Court wrote in a case involving First Amendment rights during the Cold War,

Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart… . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—the freedom of association—which makes the defense of the Nation worthwhile. 17

The Israeli Supreme Court expressed a similar view in its decision banning torture and other cruel, inhuman, or degrading treatment in interrogation:

This is the destiny of democracy, as not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day, they strengthen its spirit and its strength and allow it to overcome its difficulties. 18

The U.S. Supreme Court has come to the rescue of liberty for now, upholding the rule of law in the first round of “war on terror” cases, but in the end it is the American people that must defend our Constitution by making our views known. As Judge Learned Hand said, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”19 That perhaps is what democracy is all about. We alone can ensure that the “war on terror” does not become a “war on rights.”


  2. The government acknowledged in a footnote to its press release that Mr. Padilla continued to deny that he had actually planned to engage in any terrorist acts.
  3. Testimony of Attorney General John Ashcroft before the Senate Judiciary Committee (Dec. 6, 2001).
  4. Two excellent sources on comparative detention practices are Stephen J. Schulhofer, Checks and Balances in Wartime, 102 Mich. L. Rev. 1501 (forthcoming 2004), and Brief Amicus Curiae of Comparative Law Scholars and Experts on the Laws of the United Kingdom and Israel in Support of Respondent, Rumsfeld v. Padilla, No. 03-1027 (2004). This section draws particularly on the latter.
  5. Terrorism Act, 2000, c.11, para. 41, sched. 8 (Eng.) and Anti-Terrorism, Crime and Security Act, 2001, c. 24, pt. 4 (Eng.) [hereinafter U.K. Act].
  6. Emergency Powers (Detention) Law, 1979, 33 L.S. I. 89 (1978–79) (Isr.), and Incarceration of Unlawful Combatants Law, 2002 (Isr.), at L.438/01 [hereinafter Israeli Detention Law and Israeli Unlawful Combatants Law].
  7. Spanish Constitution art. 17(2); L.E. Crim. Art. 496.
  8. U.K. Act ¶ 7.
  9. Israeli Detention Law § 4(a). Separate measures apply in the occupied territories.
  10. Spain art. 17.
  11. U.K. Act ¶ 436. U.K. law allows for indefinite detention of some aliens, however.
  12. Spanish Constitution art. 17(2); L.E. Crim. Art. 496.
  13. Israeli Unlawful Combatants Law § 5.
  14. Marab v. IDF Commander in the West Bank.
  15. ¶ 36.
  16. Askoy v. Turkey, 23 Eur. H.R. Rep. 553 ¶ 78 (1996). See also Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations (arts. 27(2) and 7(6) of the American Convention on Human Rights), Inter-Am Ct. H.R. (Ser. A) No. 8 ¶ 12 (Jan. 30, 1987) (“[E]ven in emergency situations, the writ of habeas corpus may not be suspended or rendered ineffective… . To hold the contrary view—that is, that the executive branch is under no obligation to give reasons for a detention and may prolong such a detention indefinitely during states of emergency, without bringing the detainee before a judge … would … be equivalent to attributing uniquely judicial functions to the executive branch, which would violate the principle of separation of powers, a basic characteristic of the rule of law and of democratic systems.”).
  17. United States v. Robel, 389 U.S. at 264.
  18. Supreme Court of Israel: Judgment Concerning the Legality of the General Security Service’s Interrogation Methods, 38 I.L.M. 1471, 1488 (1999).
  19. Learned Hand, The Spirit of Liberty 190 (1960).


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