Ideas and Ideology

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Cuba Libre! A Momentous Shift in Relations

Without any question, the news of the day is the direct turnabout in relations between the United States and Cuba announced this morning. There is a rather long list of areas in which many people, including me, have profound disappointment with Barack Obama over. Lack of accountability for torture is but the latest and greatest in the news consciousness of the attuned public. But today is not such a day; today Barack Obama has risen to at least part of his once heralded promise. Today, Mr. Obama has my love and affection. Today is one of the type and kind of foreign policy, whether toward middle east or other global neighbors, moments promised in Cairo and rarely, if ever, fulfilled in tangible deeds instead of words. So, today, sincere thanks and appreciation to President Obama.

Here are the basics from the AP:

The United States and Cuba have agreed to re-establish diplomatic relations and open economic and travel ties, marking a historic shift in U.S. policy toward the communist island after a half-century of enmity dating back to the Cold War, American officials said Wednesday.

The announcement came amid a series of sudden confidence-building measures between the longtime foes, including the release of American prisoner Alan Gross, as well as a swap for a U.S. intelligence asset held in Cuba and the freeing of three Cubans jailed in the U.S.

President Barack Obama and Cuban President Raul Castro were to separately address their nations around noon Wednesday. The two leaders spoke by phone for more than 45 minutes Tuesday, the first substantive presidential-level discussion between the U.S. and Cuba since 1961.

Wednesday’s announcements followed more than a year of secret talks between U.S. and Cuban officials in Canada and the Vatican. U.S. officials said Pope Francis was personally engaged in the process and sent separate letters to Obama and Castro this summer urging them to restart relations.

This news alone would have constituted something earth shattering, but there is much more than just that. In fact, the AP laid out the merest of backgrounds with that opening. There is much, much, more. I have the official press release, and Continue reading

Torture? Obviously, But What About Litany Of Other Crimes?

So, just a quick thought here, and with a little prompting by Jon Turley, obviously there is torture, and outright homicide thereon, spelled out and specified by the SSCI Torture Report. As I have said on Twitter, there are many things covered in the SSCI Torture Report and, yet, many things left out.

There are too many instances in the SSCI Torture Report to catalogue individually, but let’s be perfectly clear, the failure to prosecute the guilty in this cock up is NOT restricted to what is still far too euphemistically referred to as “torture”.

No, the criminality of US Government officials goes far beyond that. And, no, it is NOT “partisan” to point out that the underlying facts occurred under the Cheney/Bush regime (so stated in their relative order of power and significance on this particular issue).

As you read through the report, if you have any mood and mind for actual criminal law at all, please consider the following offenses:

18 U.S.C. §1001 False Statements

18 U.S.C. §1621 Perjury

18 U.S.C. §1505 Obstruction of Justice

These are but a few of the, normally, favorite things the DOJ leverages and kills defendants with in any remotely normal situation. I know my clients would love to have the self serving, toxically ignorant and duplicitous, work of John Yoo and Jay Bybee behind them. But, then, even if it were so, no judge, court, nor sentient human, would ever buy off on that bullshit.

So, here we are. As you read through the SSCI Torture Report, keep in mind that it is NOT just about “torture” and “homicide”. No, there is oh so much more there in the way of normally prosecuted, and leveraged, federal crimes. Recognize it and report it.

SSCI Torture Report Key: They Knew It was Torture, Knew It Was Illegal

CryingJusticeOkay, here are the critical working documents:

The SSCI Torture Report

The Minority Response to SSCI Torture Report

Dianne Feinstein’s Statement

But, without any question, my best early takeaway key is that the United States Government, knew, they bloody well knew, at the highest levels, that what was going on in their citizens’ name, legally constituted torture, that it was strictly illegal. They knew even a “necessity” self defense claim was likely no protection at all. All of the dissembling, coverup, legally insane memos by John Yoo, Jay Bybee et. al, and all the whitewashing in the world cannot now supersede the fact that the United States Government, knowing fully the immorality, and domestic and international illegality, proceeded to install an intentional and affirmative regime of torture.

Here, from page 33 of the Report, is the language establishing the above:

…drafted a letter to Attorney General John Ashcroft asking the Department of Justice for “a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution. The letter further indicated that “the interrogation team had concluded “that “the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad.” The letter added that these “aggressive methods” would otherwise be prohibited by the torture statute, “apart from potential reliance upon the doctrines of necessity or of self-defense.”

They knew. And our government tortured anyway. Because they were crapping in their pants and afraid instead of protecting and defending the ethos of our country and its Founders.

Yes, Ray Rice’s Diversion Adjudication Was Appropriate

JusticePicThe popular meme has been that Ray Rice got some kind of miraculous plea deal to diversion (pre-trial intervention, or “PTI”, in New Jersey parlance) and that NOBODY in his situation ever gets the deal he did.

Is that true? No. Not at all. Kevin Drum wrote a few days ago at Mother Jones on this subject:

First, although Ray Rice’s assault of Janay Palmer was horrible, any sense of justice—no matter the crime—has to take into account both context and the relative severity of the offense. And Ray Rice is not, by miles, the worst kind of domestic offender. He did not use a weapon. He is not a serial abuser. He did not terrorize his fiancée (now wife). He did not threaten her if she reported what happened. He has no past record of violence of any kind. He has no past police record. He is, by all accounts, a genuinely caring person who works tirelessly on behalf of his community. He’s a guy who made one momentary mistake in a fit of anger, and he’s demonstrated honest remorse about what he did.

In other words, his case is far from being a failure of the criminal justice system. Press reports to the contrary, when Rice was admitted to a diversionary program instead of being tossed in jail, he wasn’t getting special treatment. He was, in fact, almost a poster child for the kind of person these programs were designed for. The only special treatment he got was having a good lawyer who could press his cause competently, and that’s treatment that every upper-income person in this country gets. The American criminal justice system is plainly light years from perfect (see Brown, Michael, and many other incidents in Ferguson and beyond), but it actually worked tolerably well in this case.

Mr. Drum is absolutely correct, Ray Rice was quite appropriate for the diversion program he was ultimately offered and accepted into by Atlantic County Superior Court.

In fact, that is exactly the deal I would hope, and expect, to get for any similarly situated client in Rice’s position. It is also notable the matter was originally charged as a misdemeanor assault in a municipal court, which is how this would normally be charged as there was no serious physical injury. Rice would have gotten diversion there too and, indeed, that was the deal his lawyer, Michael Diamondstein, had negotiated with the municipal prosecutors before the county attorney snatched jurisdiction away and obtained a felony indictment. Despite the brutality depicted by the video, this is precisely the type of conduct that underlies most every domestic violence physical assault (seriously, what do people think it looks like in real life?) and it is almost always charged as a simple misdemeanor assault.

Janay Palmer Rice clearly did not receive a “serious physical injury” level of injury under the applicable New Jersey definition in NJ Rev Stat § 2C:11-1(b) and a small period of grogginess/unconsciousness is not considered, by itself, as meeting the threshold. Now, to be fair, New Jersey has two levels of injury that can lead to a felony charge, the aforementioned “serious physical injury”, and the lower “significant physical injury”, pursuant to NJ Rev Stat § 2C:11-1(d) that Rice was charged under, and which is a far less serious charge, even though still nominally a felony under New Jersey classification.

The injury to Janay Palmer (Rice) did fall within the lower “significant physical injury” threshold under New Jersey’s criminal statutes because of the momentary apparent lapse of consciousness. So, under the New Jersey statute, while the felony, as opposed to simple misdemeanor, charge may have not been the norm for such a fact set, it was certainly minimally factually supportable. That said, most all similar cases would still be charged as simple assault, as indeed, as stated above, Rice initially was. The New Jersey assault statute, with its different iterations of offenses, and offense levels, is here.

With that description of the nature and structure of assault in New Jersey out of the way, there is something else that must be addressed: I am absolutely convinced that the Continue reading

More Catcalling Debate Room Needed at New York Times

[Update below]
So, the New York Times today has up another in their series called “Room For Debate”. Today’s topic is “catcalling”, and the supposedly relevant question for debate is “Do We Need a Law Against Catcalling?” The ‘debate” is based on the “catcalling video” that has gone somewhat viral the last couple of days. First off, let us stipulate that catcalling is disgusting and reprehensible, and there seems to thankfully be a bipartisan consensus on that. But does the New York Times make it a fair debate when it comes to criminalization of public speech? No, of course not, there are three contributors who specialize in seeking to restrict clear First Amendment speech on this subject against one token policy guy from the ACLU who gives the “whoa, hold on there” position. Hardly a “fair and balanced” fight, but the framing itself makes it crystal clear the Times did not want a fair fight.

Frankly, the fact that the NYT was determined to push the knee jerk attack on free speech side was patently obvious from the fact of their title “Do we Need a Law Against Catcalling” and that is exactly what they put up. Which, considering that the New York Times has led the pantheon of First Amendment law for decades, is a rather astounding and depressing thing. I guess the Times’ love and protection of the First Amendment tails off quickly when their own rear ends and press rights are not on the chopping block. A disturbing position.

This is but the latest example of a growing victim culture trend that is willing to abandon the founding Constitutional principles, and shift inherent burdens of proof, out of emotional angst. There is the attempt to criminalize speech in via so called “revenge porn” laws. There is the astoundingly intellectually backward desire of Ezra Klein to eliminate due process and shift the burden of proof onto the accused – presumed guilt – in state government sponsored punitive proceedings in state universities. And now this.

These are all feel good laws fighting against things that are detestable – revenge porn, non-consensual sex and flat out rape on college campuses, and verbal harassment of women on city streets and in public places. Those are all terrible things that we should all be firmly against, and I am. But just because there are terrible things out there in our world does not mean there is always an appropriate path to eradicate it through ever more broad and vague criminal laws. That is a path our founders took great care to protect against, and one we would do well to keep in mind when emotions try to overcome Constitutional protections.

So, in conclusion, no, we most certainly do NOT need a law against catcalling. Furthermore, in the true spirit of Halloween, I boo and hiss in the general direction of the hypocritical New York Times, who apparently view the First Amendment as protecting them, but not the rest of us non-journalist common citizens.

[Note: It is my belief that this will be one of multiple entries from a group of friends who are either practicing criminal defense attorneys, or heavily involved in the criminal justice system. Our own “More Room For Debate” if you will, because the Times will never seek out actual practicing criminal defense lawyers when talking about, you know, criminal laws. Those in for the debate, or hopefully contemplating it, are: Scott Greenfield from Simple Justice, Gideon from A Public Defender, and Liliana Segura from The Intercept. All of these people, and their blogs, are simply superb, and you should be reading them. When and if they post their entries at their sites, I will update with links here]

Update 1: And Scott Greenfield has weighed in with his take.

Gov. Nixon Should Remove Prosecutor McCulloch Too

What a difference a day makes. After several days of police wilding in the streets of Ferguson, Missouri Governor Jay Nixon removed local and county control of policing and ordered the head of the Missouri State Patrol to take over. The change in tone was immediate, instead of making war on the citizens of Ferguson, last night the police walked side by side with the protesters and engaged them as actual citizens. Suddenly things were better and hope returned to the town.

The move pretty clearly should have been made a couple of days earlier, but Gov. Nixon was right to make it and made a strong and unifying statement when he announced the move.

But governor Nixon’s work is not done. It is not just the local police that displayed impropriety and lack of fitness for the job in relation to the aftermath of the Michael Brown killing…so to has the local prosecutor, Robert McCulloch.

Late yesterday, McCullogh said this to local reporter Paul Hampel:

First off, McCulloch’s statements displayed a remarkably tone deaf and tin ear, not to mention an affinity for the local police that is directly at odds with the duty of prosecuting the officer who killed Michael Brown. And make no mistake, the killing is shaping up as a straight up execution of Brown by the soon to be named officer. Yet another eyewitness came forward last night (in some superb work by MSNBC and Chris Hayes) reinforcing and corroborating the description previously given by Dorian Johnson, the youth who had been with Brown.

So, the statements of prosecutor McCulloch, who as the elected prosecutor for St. Louis County, would have presumptive jurisdiction of any prosecution, already place him in a position of potential bias.

But there is more in McCulloch’s background that makes him inappropriate for this case. As described in a Reuters background article on McCulloch:

As St. Louis County prosecuting attorney, McCulloch is responsible for deciding whether to pursue criminal charges against the police officer who fatally shot 18-year-old Mike Brown on Saturday outside a low-income apartment complex in Ferguson, Missouri.

The shooting of the unarmed black teenager sparked days of rioting and protests in Ferguson and surrounding communities and some residents say the mostly white ranks of local and county law enforcement officials are not objectively investigating the case.

McCulloch, 63, has held the top county prosecutor’s job for 23 years and has promised an impartial investigation of Brown’s death. But protesters say McCulloch, whose police officer father was killed in the line of duty when McCulloch was a child, should be removed from the case.

“I don’t trust Bob McCulloch,” community activist Anthony Shahid said as he helped lead a march by roughly 100 people at the St. Louis County Justice Center this week. “His father was killed by a black man.”

Should that history disqualify a prosecutor in a normal situation? No, probably not. But this case is not at all a normal case. The eyes of the world are now on Ferguson, and the town is still distrustful of the local authorities and frayed at the emotional seams.

The investigation and charging determination have to be beyond reproach. It has to be done right and the citizens and victim’s family must trust justice is being fairly done. At this point McCulloch cannot be the man who leads that effort. Not now.

And there is a clear path for Governor Jay Nixon to remedy the situation. Chapter 27 of the Missouri Revised Statutes, specifically §27.030, provides:

When directed by the governor, the attorney general, or one of his assistants, shall aid any prosecuting or circuit attorney in the discharge of their respective duties in the trial courts and in examinations before grand juries, and when so directed by the trial court, he may sign indictments in lieu of the prosecuting attorney.

Governor Nixon has the clear authority to order Missouri Attorney General Chris Koster to aid this prosecution and guide the grand jury investigation. In order to give the community confidence a fair process and justice is being delivered, that is exactly what the Governor should do.

[PS Note: While the post title talks of “removal”, and there may or may not be a separate path for that available to Nixon under “emergency powers”, §27.030 only provides a path to have the AG, or his designee, be effectively a co-leader of the prosecution, both in the grand jury and in the trial court. This would be a substantial move, in and of itself, in that a more neutral party than McCulloch would be involved along side him, with full rights to participate in proceedings.]

A Note Of Praise For Jake Tapper

photoYammering on the internet is not hard work, in fact it is blindingly (and sometimes maddeningly when it is pointed in your direction) easy. Getting heard, and functionally interacting in a fashion that can contribute to the real focus and discussion, however, is hard. For my part, I often carp enough about the failings of big media that it is only right to give praise where due.

Today credit is due to CNN’s Jake Tapper. Because he cares.

Two nights ago, rightly or wrongly …. but I think rightly … I laid into CNN for their overbearing focus on repetitive, and somewhat mindless, continuing drivel on celebrity. That was, of course, in relation to Robin Williams’ death. A noteworthy, sad, and tragic event for sure, but there was only so much news, the rest was pure Entertainment Tonight like pathetic drivel.

So I went after CNN, and I tacked Jake Tapper’s twitter handle on the end. I did so not because I thought he was the prime offender producing the overall CNN news product, but because I knew, from prior interaction, that Jake actually gives a damn and and is a contact point at CNN who would care. And maybe…maybe…be a change point. That was both fair, and unfair to him personally, at the same time.

I am pretty sure both CNN and Jake were bombarded by by an untold number of missives of the same variety. I don’t how how other inflection points at CNN dealt with what was surely a lot of feedback, but the fact Mr. Tapper took the time to take umbrage, and discuss…and think…seems significant and admirable to me. And I admire that.

I thought about writing this post long before I saw the following, but I was off with clients and court appearances, and could have easily shined it on, as I do with so many posts I want to write but don’t get to.

Until I saw something from Mr. Jake Tapper today that was just awesome.

Screen Shot 2014-08-14 at 3.26.25 PM

Well, yes!

But then, not long later, came this:

Screen Shot 2014-08-14 at 3.27.54 PM

Well, to be sure, this is the stuff even a critic of journalism can love and applaud. You know why? Because not only is solidarity with journalists under grand jury and governmental oppression admirable (I have some experience in GJ targeting), it is the only, and only proper, thing that can be done.

There are not many out there to be so applauded. Maybe tomorrow there will be an issue, and moment of difference, on a different case. So it goes, and so be it.

But, now, James Risen stands exposed and on his own. As a man, and as a journalist, Tapper stood up and gave public square to his voice. Good on him.

Tonight, I am glad Jake Tapper is out there and is willing to engage. Tonight he did one hell of a report from Ferguson Missouri. Even if a big part was consumed by press conference feed. But, before and after, he made his voice clear. That is not exactly a common thing. It is to be commended.

Give the man credit, he was there, and he cares. And I will buy him a drink.

Meet Adam Kwasman, Arizona’s Racist Bigot Politician of the Month

With the latest furor over minor children and the border already in full swing on top of all the other immigration fear mongering going on in this election year, you would think you had about heard it all when it comes to preening idiotic nonsense from “conservative” politicians.

Think again.

Exhibit A: This somewhat beyond amazing story of Adam Kwasman, a current member of the Arizona State Legislature and a candidate for Congress in Arizona LD-1. Kwasman, in a mad rush to the gun nut bigot fest protest of immigrant children in southern Arizona, inspired by the Murietta hatred, saw a bus load of YMCA campers in a school bus on their way to summer camp. Kwasman, displaying every ounce of his razor sharp Einstein like brilliance, immediately concluded they were evil immigrants.

From Brahm Resnik and the Arizona Republic:

He [Kwasman] had tweeted from the scene, “Bus coming in. This is not compassion. This is the abrogation of the rule of law.” He included a photo of the back of a yellow school bus.

Kwasman later told me he saw the migrant children. “I was actually able to see some of the children in the buses. The fear on their faces…. This is not compassion,” he said.

But there was a problem with Kwasman’s story: There was no fear on their faces. Those weren’t the migrant children in the school bus. Those were children from the Marana school district. They were heading to the YMCA’s Triangle Y Camp, not far from the Rite of Passage shelter for the migrants, at the base of Mt. Lemmon.

12 News reporter Will Pitts, who is at the protest scene, says he saw the children laughing and taking pictures of the media.

Watch Brahm Resnik make an idiot of Kwasman at this link. I will not embed the video because I cannot get rid of the auto play command.

1st Amendment and Other Concerns On Appeal of Redskins Decision

JusticePicThere has been a lot of commotion over Wednesday’s decision by the US Trademark Trial and Appeal Board to cancel several trademark registrations of the Washington Redskins originally recognized back in the 1960′s by the United States Patent and Trademark Office (PTO). The full decision is here. It is quite long, detailed, and, at least facially, pretty compelling in its finding that the trademarks are “disparaging to Native Americans”.

Before I go further, let me say that I agree with those who think Daniel Snyder and the Washington Professional Football Franchise should change their name. It may not be the most pressing issue in our society, but it is something for which the time has come. Josh Marshall posted his thoughts on this subject at Talking Points Memo, and I think he put it all in excellent perspective and I agree with his conclusions.

The simple fact is we shouldn’t be using whole peoples as mascots for sports teams. Whether or not Indians in America today find it offensive is almost beside the point. The fact that most do is just an extra reason to do away with the practice.

With all I’ve said, there’s a part of me who feels like, ‘We really can’t have the Cleveland Indians anymore?’ It feels like a loss – part of the landscape of American sports I’m attached to. But it’s time.

Well said and, again, I agree. Josh’s entire piece is not long and is worth a read.

That said, and as much as I would like to see the name changed, I have trepidation about the government forcing the issue through agency decisions on what is proper speech, and what is not.

Tradenames and trademarks are, by their nature, really public speech and, thus, at least where they interact with the government, should be entitled to First Amendment protection. Now First Amendment protection is never absolute, but it is presumptively extremely broad. Likewise, First Amendment protections are against governmental action restricting free speech, not necessarily against private persons or entities. If I refuse to listen to you or to print what you have to say, that would be censorship, but it is not First Amendment action. If I am the government and censor you, then that is a different matter and there is a First Amendment issue.

So, here, the TTAB has taken it upon itself to restrict, at least in some regards, the free expression of the Redskins, via refusal to extend the same protection offered other “acceptable” speech and they do so by obvious decree of a governmental entity. Now the TTAB decision made out a VERY thorough and facially compelling case for Continue reading

The Carnage In Isla Vista, Hashtag Justice and Echidne

Screen Shot 2014-05-26 at 11.41.50 AMI have not been there in a while, but I have been there quite a bit before, and the Isla Vista/Goleta area surrounding UCSB is everything good and bad that surrounds any major university. It is a melting pot teeming with brilliant young minds, eager to expand and ready to experiment and socialize. It is also cliquish and too easy to separate the in from the out crowd and, sometimes, rich from poor. Above all else, at least from my visits there when I was younger, IV was one wild party that could be anywhere along a couple of key streets, if not indeed out in the streets themselves. It was one hell of a good time.

But not this Memorial Day weekend. Something different and jolting happened, leaving seven souls dead, seven more injured and yet another community, and national audience, grieving and reaching for answers.

I don’t know what the answers are, and to a great extent, I do not think the pathology of this incident is yet ripe enough to draw them with any real definition. That has not, of course, stopped the light speed social justice court of Twitter and the internet.

The reaction on Twitter has run the spectrum from sober to hysterical. If you are on Twitter, you have seen it, if you are not, it is not hard to imagine if you are internet savvy enough to be reading the instant post. Speaking only for myself, however, I have been a little disturbed by the alacrity with which valuable social justice movements, and their participants, have glommed on to a tragic spree crime as the defining vehicle for their arguments, whether it be women’s rights, gun control or otherwise.

It strikes me, while certainly all of these things figure into the Rodger situation to some extent, hitching up to a spree murder by a mentally disturbed individual is not exactly a great vehicle for your social justice movement. It is more complex than that, and it is too easy in haste to mistake manifestations for root causes. Post hoc, ergo propter hoc if you will.

And, while I know the intent was good, I have found the “hashtag advocacy” via such tags as #YesAllWomen, and the reflexively responsive #NotAllMen, to not necessarily do all that much to further the well meaning intention of their adopters. While some of those tweets have seemed germane and helpful, a great many seem Continue reading

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Emptywheel Twitterverse
JimWhiteGNV Re-upping: GAO Analysis Highlights Lab Samples Excluded in Sloppy FBI Anthrax Investigation https://t.co/tayFUfUjol
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bmaz @goodyk Had to go to the airport. Which prevented me from saying you were right. Ugh.
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bmaz @robertcaruso @KatieSimpsonCTV Hey, in Ohio that person would be dead; the border is apparently safer!
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bmaz @goodyk Meh, I think the defense looks different if they were not gambling and pressing because there is no possibility of offense.
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bmaz @goodyk No. But would really like to have seen how this game went with Carson Palmer, or, really, any quarterback, around.
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JimWhiteGNV RT @remesdh: Prosecute Torturers and Their Bosses http://t.co/eB7tiZlzCH
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emptywheel @thegrugq Precisely. Some criminal networks are more lucrative than others--esp if top govt officials are revolving door in and out of it.
11hreplyretweetfavorite
emptywheel @thegrugq See also Wall Street.
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JimWhiteGNV RT @JasonLeopold: NYT Editorial Board: Prosecute Torturers and Their Bosses http://t.co/BPPranpgDy
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JimWhiteGNV RT @froomkin: NYT editorial: Prosecute Torturers and Their Bosses http://t.co/nqXkNZ3VQY
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JimWhiteGNV @bsonenstein Maybe tomorrow?
11hreplyretweetfavorite
JimWhiteGNV Costas the philosopher. #Destiny
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