Jonathan Fredman on Approvals

As you probably recall, there was a Counter Resistance Strategy Meeting at Gitmo on October 2, 2002 (the minutes for it start on page 219 of this PDF). At the meeting, Jonathan Fredman, then the Counterterrorism Center’s top lawyer, famously said, "If the detainee dies, you’re doing it wrong."

More interesting (for my present purposes, anyway) are his comments about how the CIA got approval for torture. First, he claims that the US did not sign Article 16 of the Convention Against Torture because the 8th Amendment covers that already.

Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

It’s a bizarre argument to make, not just because it’s false, but because at other times the CIA and DOJ rationalized ignoring Article 16, they focused on the 5th Amendment, not the 8th.

Later, Fredman has a conversation about what approval process DOD might use to be able to use torture.

[GTMO Interrogation Control Element (ICE) Chief Dave] Becker: Would we get blanket approval or would it be case by case?

Fredman: The CIA makes the call internally on most of the types of techniques found in the BSCT paper, and this discussion. Significantly harsh techniques are approved through the DOJ.

[Director for Intelligence (J-2)] LTC Phifer: Who approves ours? The CG? SOUTCOM CG?

Fredman: Does the Geneva Convention apply? The CIA rallied for it not to.

Phifer: Can we get DOJ opinion about these topics on paper?

LTC Diane Beaver: Will it go from DOJ to DOD?

Phifer: Can we get to see a CIA request to use advanced aggressive techniques?

Fredman: Yes, but we can’t provide you with a copy. 

As you know, I’ve been tracking the way that Jim Haynes and David Addington parsed answers about when they saw the Bybee Two memo, describing the torture techniques approved for Abu Zubaydah; Addington even seemed to be dodging questions about whether or not he showed anyone at Gitmo the memo. And this exchange seems to suggest CTC was willing to share its DOJ backup with Gitmo officers.

Mind you, this meeting took place a week after Addington and Haynes went on their Gitmo field trip and the context seems to suggest that Phifer, at least, has not seen the Bybee Two memo. (Major General Dunlavey, who had side conversations with Jim Haynes and others–probably Addington–during the field trip was not present at this meeting.)

But this conversation seems to suggest that Fredman was anticipating show the request for OLC authorization to torture, if not the Bybee Two memo itself, to the Gitmo officers. 

Also, note that Fredman says CIA approved "most of the types of techniques" internally, leaving only the significantly harsh techniques to DOJ authorization. This seems to conflict with the stories of near-daily cables from Thailand authorizing torture techniques for Abu Zubaydah (which reportedly went through CTC, so probably through Fredman). But it suggests at least in October 2002, before detainees started dying, Fredman didn’t consider the Bybee Two memo to be authorization for less harsh methods, presumably including stress positions.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

41 replies
  1. earlofhuntingdon says:

    I like the reference to the CIA “rallying” around or for the non-application of the CAT and Common Article 3 of the Geneva Conventions. Sure they would. IBM, Citi, GM, Microsoft and Goldman might now or once have rallied round the idea that the anti-trust laws don’t apply to them. Wishful thinking is not the law or sound advice about what it says.

    What does it say that all these players knew they were on thin ice legally, politically and morally and that they kept asking for “something in writing”, but were told they couldn’t get it or see it or have a copy of it? Isn’t that, oh, a fairly strong indicator that these actors knew they were committing or authorizing the commission of heinous acts and that advice or no, they were not reasonably relying on informed advice of credible counsel? Just asking.

    • emptywheel says:

      In the SASC report, that reference was described as referring specifically to the meetings in January-February of that year leading up to Bush declaring GC not to apply to Al Qaeda.

      • earlofhuntingdon says:

        Except that the legal advice from the DoJ, even once rendered officially, was severely limited in its distribution.

        • emptywheel says:

          No, all I’m saying is that Fredman was in some of the meetings leading up to Bush’s February 7 declaration, and the SASC report portrays him as saying, in those meetings, that CIA had carved out a non-GC space for itself.

  2. Mary says:

    One way to read the above would be that when Phifer was asking to see a copy of a request by CIA interrogators to use harsh techniques – he wasn’t getting at the OLC opinions but more the actual format/form for requests made to engage in depravity use enhanced techniques, whether the approving entity was CIA/CTC or DOJ. IOW – it could be that he wanted to see how someone phrases a request to torture. I guess if I was going to do it – ask for a sign off on my requests to beat/assault/etc. someone, it would be nice to see how others had made the request beforehand.

    I’m not sure I understand the last paragraph above though – how the CIA approving/signing off on the cable requests coming in from Thailand internally – via Tenet, CTC, Rizzo, Mueller etc. is a conflict?

    Re: the 5th v. the 8th – I also think it was odd, but I’ll throw this out as a possible – in general pre-trial pre-judgment issues would be 5th amendment and post-judgment 8th, but gov was taking the position during Oct 2002 that all the detainees at GITMO were battlefield captures. IOW, they were saying they had the laws of war on their side vis a vis detention, bc they were only detaining combatants from the battlefield at GITMO. That was a lie, and by Oct 2002 there was even a CIA memo exposing it as a lie, but still, that’s what they were saying.

    By contrast, the rational for the CIA detentions was never based on battlefield capture (which would have trended towards military detentions).

    So maybe he mispoke, maybe he was confused, maybe he was being devious, or maybe they did think that they had already passed into an “authorized detention” area based on completed acts of combatancy during war and so they were looking at 8th instead of 5th amendment types of issues.

    Or not.

    • emptywheel says:

      Totally agree he may have just been asking for the proper format on how to ask to torture.

      Though frankly, I suspect Rizzo’s documents leading up to the Bybee Two memo (which, if I’m not mistaken, we haven’t ever seen even in a Vaughn index) are much more damning than the memo itself.

      Also remember that CIA consistently argued that the 8th couldn’t count bc they weren’t being punished.

      • bmaz says:

        Fredman is also misstating the nature of the US Article 16 reservation.

        With respect to Article 16 of the Convention, which requires states to prevent lesser forms of cruel
        and unusual punishment that do not constitute torture, the Senate’s advice and
        consent was based on the reservation that the United States considered itself bound
        to Article 16 to the extent that such cruel, unusual, and inhumane treatment or
        punishment was prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to
        the U.S. Constitution.

        • emptywheel says:

          Yup–that’s what I was thinking of when I said, “that’s false.”

          Who knew I’d become an expert (well, not really, but apparently a better one than CTC’s top lawyer) on our reservation to ARticle 16?

        • LabDancer says:

          And perhaps more seminal: from page 3 of 5, on page 216 of the report, page 220 of the pdf version, attributed to Karl Pilkington* Jonathan Fredmen [the one with the lean & hungry look, inclined to too much thought on such things]:

          “Under the Torture Convention, torture has been prohibited by international law, but the language of the statutes is written vaguely“.

          Gawd…you can just about see Leo McKern as Cromwell in Man For All Seasons, sharing those last 9 words like a sweet trifle with every remote corner inside his mouth.

          [*Karl Pilkington is one of Ricky Gervais’ comedy collaborators, prized most for his ignorant, reactionary, bull-headed, single-track, miss-takes on just about everything — tho not obviously either misogynist or racist; close enough to Emily Litella to bring to mind thge rules against consanguinity, yet male, looking less inclined to rabble-rouse than to actually do something about the lunatic misconception, & rather than being in the end almost charmingly open to dissuasion on the facts & fey about it all, having no willingness to consider for the slightest moment that he might be wrong, and giving on the distinct impression both of resenting your efforts to dissuade & opening up a mental file on you]

      • Mary says:

        Also remember that CIA consistently argued that the 8th couldn’t count bc they weren’t being punished

        Yep, but there is a big difference between the CIA blacksite confinements (which are without any basis under any kind of law and so they implicate the 5th) and military confinements of combatants, which is pretty solidly based under the laws of war. So once you have a situation where confinement is legal and is also based on completed acts of culpability, I think you could argue that military confinement of combatants is more like post-trial confinement of criminals. I wouldn’t, bc I think you still have the bigger issues of govt purpose of punishment v. securing the battlefield, which are pretty different purposes, and then you have the whole fallacy of GITMO as a destination for combatants at all, v. as a destination for human trafficking victims.

        But I thought I’d at least toss out the possibility.

        @6 & @9 – he’s saying that we opted in on being against torture, but we opted out of being against “cruel, inhumane and degrading” bc we were going to rely upon the 8th’s prohibition on “cruel and unusual” and there he is saying that, we can’t be “cruel” to convicted terrorists (but he’s leaving open the Scaliac “no prohibition against pre-judgment torture – Burgeco will like that”) but we can be “inhuman and degrading” except, of course, he’s pretty much ignoring that the CIC for those soldiers had publically announced that all detainees were going to be treated humanely. Still, he’s got degrading. But the other impact of the 8th is that it allows him to focus on extraterritorial issues – bc that was the real heart and soul of all the decisions and actions and the reason GITMO was established – – they were contending that the Constitutional safeguards of the 5th and 8th amendments do not apply to how the American govt acts outside of America. IOW, they say that the govt that exists by enumerated powers and which is prohibited by the consitution from engaging in depravity at home is nonetheless authorized to be depraved out of sight. Kind of like the “spring break” theory of law.

        • bmaz says:

          ….And America is pure, moral, just and in full compliance with the Geneva conventions!! Now, about those pesky Iranians that have been torturing people….

  3. earlofhuntingdon says:

    The claim that section 16 of the CAT doesn’t apply because the Eighth Amendment prohibits inflicting “cruel and unusual punishments” seems odd.

    The GOP has gone to great lengths to claim that furriners, except those legally in the US, are not beneficiaries of Constitutional protections. How would, in their view, the Eighth Amendment limit the US government’s actions with regard to other furriners?

    The CAT seems intended to fill that gap, to globally prohibit all signatories from inflicting cruel and unusual punishments, at least on citizens of other signatories. Fredman is saying the US refused to sign Article 16 not because the Eighth Amendment already bound the US government to similar limitations, but because the US did not want to be so limited with regard to those outside its Constitution’s protections, which is most of the world.

    Fredman’s logic leaves enormous room for mischief, but then that’s probably intentional.

  4. bobschacht says:

    I dream of a Nuremburg-like War Crimes investigation and prosecution of all these bastards, all the way to the top. It would take something like that to do the kind of moral cleansing this country needs, so that once again we can hold up our heads and be proud in the rest of the world.

    The Democrats have really set themselves up for this, by not confronting the “You’re weak on defense unless you agree to everything the Republicans propose and do, no matter how illegal or morally reprehensible” meme. I’m looking especially at Nancy “Impeachment is off the table” Pelosi and the Blue Dogs and DINOs in both House and Senate who voted for the dirty dozen “Bipartisan” bills Glenn Greenwald identified in January 2008. Those are the ones who are truly deserve to be called WEAK.

    Bob in AZ

  5. bmaz says:

    Fredman: The Torture Convention prohibits torture and cruel, inhumane and degrading treatment. The US did not sign up on the second part, because of the 8th amendment (cruel and unusual punishment), but we did sign the part about torture. This gives us more license to use more controversial techniques.

    It’s a bizarre argument to make

    Boy, no kidding. He is one one hand arguing the US didn’t sign up for part of an anti-torture convention because they inherently have something much stronger and fundamental, and then saying we can torture because that doesn’t apply. Fredman ain’t exactly Oliver Wendell Holmes is he?

    • emptywheel says:

      I think that’s a feature, not a bug.

      And we still don’t have the OPR report because CIA is conducting a review of its own equities in the report. I’ve long argued there must be a subchapter devoted to Rizzo. With this kind of brilliance, I’m sure Fredman gets a few footnotes, at least.

  6. earlofhuntingdon says:

    That suggests that the CAT’s prohibitions would apply to all except those persons entitled to the benefit of US Constitutional protections. It also suggests that the US understands the protections – and the obligations – to be the same, whether derived from Constitution or the CAT.

  7. MadDog says:

    One of the things that really catches my eye is the fact that Jonathan Fredman, CIA CounterTerrorism Center’s chief counsel, a fookin’ lawyer, is in this meeting (page 212 of the 312 PDF) at all!

    …Counter Resistance Strategy Meeting Minutes

    Persons in Attendance:

    COL Cummings, LTC Phifer, CDR Bridges, LTC Beaver, MAJ Burney, MAJ Leso, Dave Becker, John Fredman, 1LT Seek, SPC Pimental…

    (Note: Dave Becker does not appear to be a CIA person based on his comments.)

    So the question arises: Why is a CIA lawyer the only representative of the CIA at this “Counter Resistance Strategy Meeting”?

    In most meetings, one would think the likely attendees generally would be “Subject Matter Experts – SMEs”.

    What does it say about the CIA, the Torture Program, and the illegality likely known to all involved, that the CIA representative devising strategy with DOD personnel is a fookin’ lawyer?

    • emptywheel says:

      Claire McCaskill asked about that, kind of:

      Senator MCCASKILL. Before you wrote your legal opinion stating
      that all of these techniques—the techniques that we’ve referenced—
      all of 1, all of 2, and some of 3—were legal under the
      Federal law, you attended a meeting that’s been discussed here,
      where there was a strategy meeting on counterresistance, Lieutenant
      Colonel Beaver, and there were a number of people at that
      meeting, including the CIA lawyer and the chief of interrogation
      control, Dave Becker. Do you remember that meeting?

      Colonel BEAVER. These meetings were mine. I started them in,
      I think it was late August, when I became aware that the military
      intelligence personnel wanted—were considering requesting additional
      techniques, so I thought it best if I held the meetings, brainstorming
      sessions, for lack of a better way to describe it, and invited
      everyone, including the law enforcement agencies, that there
      would be a more open discussion, as opposed to just the military
      intelligence people. So, that was a regularly scheduled meeting that
      Mr. Fredman, who just happened to come down to the island that
      day, was there for. So, it wasn’t held for him, it was a meeting that
      I had—I scheduled those meetings and invited everyone.

      Senator MCCASKILL. Okay. So, the CIA lawyer was just invited
      in for that meeting that was already planned.

      Colonel BEAVER. Yes.

      (It’s in the same PDF, 98-99.)

    • MadDog says:

      …(Note: Dave Becker does not appear to be a CIA person based on his comments.)…

      As a side note, I googled around a bit and managed to find out that Dave Becker’s responsibilities were thus:

      …Dave Becker, representing the Defense Intelligence Agency…

      I’m guessing he that good ol’ Dave was part of the DIA’s HUMINT group. Those are the folks who had a primary lead role in detainee interrogations for the DOD.

      • MadDog says:

        And this was an interesting observation from that same blog post:

        …Secondly, it struck me when transcribing these minutes the degree to which John Fredman, the CIA legal counsel and rep to this meeting, dominated the discussion. All the participants seem to bow to his authority, especially on legal issues, with Lt. Col. Beaver chiming in as well. While the BSCT members — who are the medical professionals present — appear to criticize “fear-based” interrogations techniques at the beginning of the meeting, in favor of rapport-building, as well as abusive environmental “approaches,” as the discussion veers more and more to propositions regarding blatant torture, like the “wet towel” (waterboarding) technique, nary a protest is heard from these individuals, who have by their actions disavowed the ethics of their medical and/or psychological professions…

        (My Bold)

        That is the very same sense that I came away with. The CIA’s Fredman being the Alpha dog.

        • Jeff Kaye says:

          FYI, I wrote that post, and you’ll still find various articles posted under my Valtin monniker. I use my name most of the time now, except at my home blog (and why I keep the old pseudonym there is mostly out of nostalgia, I suppose) and when I post at Daily Kos.

  8. maryo2 says:

    Who did Jonathan Feldmen report to in October 2002? What I am reading say CTC was started in August 2004 and reports to DNI which also didn’t exist before 2004.

    • maryo2 says:

      Found it (answer is the CIA) on page 9 of the pdf:

      On October 2, 2002, a week after John Rizzo, the acting CIA
      General Counsel, visited GTMO, a second senior CIA lawyer, Jonathan
      Fredman, who was chief counsel to the CIA’s Counterterrorism Center, went to GTMO

  9. MadDog says:

    Oh, and totally OT, but if ya’ll have a few extra moments, do read this gobsmacking “tell-all” 10 page article on the Bush/Cheney clown-car regime from an insider, speechwriter Matt Latimer, over at GQ:

    ME TALK PRESIDENTIAL ONE DAY

    I always wondered just how many clowns could possibly fit in a clown-car, and now I know.

  10. emptywheel says:

    And this question from Hillary:

    47. Lieutenant Colonel Beaver, who invited officials from intelligence agencies to
    the meeting?
    Lieutenant Colonel BEAVER. I don’t recall exactly how this happened but I invited
    personnel from JTF–170 and CITF. I encouraged these organizations to bring anyone
    who could provide substantive input on interrogation matters. Mr. Fredman just
    happened to be at Guantanamo Bay, Cuba visiting his personnel the day this meeting
    was scheduled. I invited him to attend. I thought the involvement of many different
    personnel with different backgrounds would lead to the best discussion of the
    issues—legal and policy. These were brain storming sessions and the ideas expressed
    were not to be attributed to the individual but just the group’s discussion
    on that particular day. Without the establishment of a non-attribution policy it was
    unlikely that personnel would have felt comfortable expressing opinions about this
    controversial topic.

    [

    • MadDog says:

      Ok, nice catch on your comments # 21 and 22.

      That said, that Jonathan Fredman, CIA CounterTerrorism Center’s chief counsel, just happened to be vacationing in Gitmo, still begs the question on why anybody in their fookin’ right mind would consider this lawyer as a Subject Matter Expert on “Counter Resistance Strategy”.

      On the other hand, if one thought that this meeting was for the purpose of exploring the illegalities of torture and how to attempt to cover oneself, then by all means, Jonathan Fredman, CIA CounterTerrorism Center’s chief counsel, is one of the go-to guys!

      • emptywheel says:

        I’m really fascinated by Dunlavey’s absence at this meeting. He was the one having private chats with Hayens and (I’m sure) Addington just one week before. And I wouldn’t be surprised if Addington sent Fredman down there.

        • MadDog says:

          I can understand Dunlavey’s absence since he was Commanding General of Joint Task Force 170, and as such, would delegate almost everything to staff.

          As is the case in most organizations, the head honcho isn’t paid to “do stuff”, but to “think, lead, and decide stuff”.

          In this case, I’m guessing he gave his staff marching orders bounded by parameters concocted with Addington, Rizzo and Haynes for the “gloves off” approach to “interrogation”.

          The CIA also did “interrogations” at Gitmo (and none of it is documented as far as I can see in the unclassified portions of the SASC report which really only focuses on the DOD), so their presence can generally be “explained” at the “interrogator” level.

          But the presence of the “chief counsel to the CIA’s Counterterrorism Center”?

          What is this lawyer doing there? And what was CIA “acting” General Counsel doing there the week before (from page 9 of the 312 PDF):

          …On October 2, 2002, a week after John Rizzo, the acting CIA General Counsel, visited GTMO, a second senior CIA lawyer, Jonathan Fredman, who was chief counsel to the CIA’s Counterterrorism Center, went to GTMO, attended a meeting of GTMO staff, and discussed a memo proposing the use of aggressive interrogation techniques. That memo had been drafted by a psychologist and psychiatrist from GTMO who, a couple of weeks earlier, had attended that training, given at Fort Bragg by instructors from the SERE school…

          Again, it really strikes me as curious why the CIA, and CIA lawyers in particular, were present and apparently taking a leadership role in “teaching” their DOD counterparts the “rules of the game”.

          And yes, I’m betting Addington, Rizzo and Fredman were as close as peas in a pod.

  11. MadDog says:

    And in an effort to be fair and forthcoming, it should be noted that the ever-detestable legal beagle Stuart Taylor leapt to Jonathan Fredman’s defense back in January via this National Journal article:

    Inconvenient Facts And Detainee Abuse
    A recent report by the Senate Armed Services Committee on treatment of prisoners has serious credibility problems

    “It is basically subject to perception. If the detainee dies you’re doing it wrong.”

    This was perhaps the most chillingly outrageous, widely quoted statement by a government official to be aired by Senate Armed Services Committee Chairman Carl Levin, D-Mich., at hearings last summer and in the committee’s December 11 report on abuse of detainees by U.S. forces.

    But the quoted official, CIA lawyer Jonathan Fredman, told the committee on November 18 that he had made no such statement. In fact, Fredman added in a heretofore confidential, five-page memo, he had stressed at the 2002 meeting with interrogators at the Guantanamo Bay detention facility described in the Levin committee’s report, “Interrogation practices and legal guidance must not be based upon anyone’s subjective perception” (emphasis added) but rather upon “definitive and binding legal analysis…”

    And in continuing the fairness, it also should be noted that our own Spencer Ackerman took both Stuart Taylor and Jonathan Fredman to the woodshed via this Windy article back in April:

    Key Player in ‘Enhanced’ Interrogations Still at CIA
    Newly Released Senate Report Details Jonathan Fredman’s Alarming Comments on Interrogation Techniques…

    …The Washington Independent was unable to obtain a copy of Fredman’s memo from either ODNI or the Senate panel. TWI has filed a Freedom of Information Act request with ODNI to acquire it.

    The Senate source said that Fredman’s memo did not dispute the basic facts at issue in the committee’s report: that he went to Guantanamo Bay and attended the October 2002 meeting on behalf of the CIA; that he discussed waterboarding and other SERE-based techniques with Guantanamo officials; and that he advised Guantanamo officials on the legal basis for the use of those techniques. The source added that the Senate interviewed officials present at and familiar with the October 2002 meeting, and they confirmed for it the accuracy of the minutes’ account and tone of Fredman’s remarks.

    “Obama has to rid himself of the torture conspirators, and Fredman is one of them,” said Ratner. “What are these people doing working for the federal government?”

  12. Jeff Kaye says:

    Great post, Marcy. Those minutes were a real find, and as much as I have read them, something new always emerges, as you have proven.

    What struck me personally was LTC Phifer’s remark:

    [Director for Intelligence (J-2)] LTC Phifer: Who approves ours? The CG? SOUTCOM CG?

    LTC Jerald Phifer was staff intelligence director for JTF 170. It seems unlikely he’d as who would approve techniques in general. No, he must have meant the “significantly harsh techniques” Fredman mentioned. In any case, by October he knew what to do. It was Phifer who wrote the October 11, 2002 memorandum requesting the harsh techniques at Gitmo, and sent it up the chain of command.

  13. LabDancer says:

    IMO one of the best aspects of this post is in pointing to a clear, horrifying yet memorable exemplification of how the worker ants in bureaucracies work around that which leadership may imagine or even intend to deny them. Diane Beaver is shown as knowing precisely what is expected & precisely what is needed to facilitate that. I saw this sort of scenario play out repeatedly in meetings with law enforcement officers, even in prosecutors’ offices. A total lack of naivete that it happens is one of the advantages granted to former prosecutors acting as defending attorneys.

    • MadDog says:

      …worker ants…

      I think they were worker bees, and they knew full well who the real Queen Bee was:

      Junya – “America does not torture!”

      PapaDick – “We have to go over to the Dark Side…”

      Just like at many of the corporations I worked for/with in my career, the type of employee who got ahead was generally a mirror of the type of leadership management provided.

      When the bosses were unscrupulous or downright criminal, so were the employees who got ahead.

      Birds of a feather so-to-speak.

  14. tjbs says:

    “significantly harsh techniques”is quite a euphemism,now isn’t it?
    Is there a memo defining harsh from significantly harsh?
    Crucify for two hours instead of three?
    Water board 183 times but NEVER 200 times?
    Only torture two out of the three children?
    Sensory deprivation for only three years instead of five?
    Burying people alive for just a few hours instead of days?
    Spraying people with cold water in freezing weather that is 34 degrees and not a degree colder?
    When our agents ……………..

  15. tjbs says:

    “If the detainee dies, you’re doing it wrong.”
    After 1 died what changed ?
    After 10 died what changed ?
    After 50 died what changed ?
    After 108 homicides under questioning died, at least, what changed?

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