Indefinite Detention

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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.

Abu Wa’el Dhiab and Five Others Released to Uruguay

Abu Wa’el Dhiab, the Gitmo prisoner at the center of an ongoing force-feeding controversy, has been released to Uruguay along with five others.

Dhiab’s Reprieve lawyer, Cori Crider, said this in a statement.

Cori Crider, a Director at Reprieve and a lawyer for Mr Dhiab, said: “We are grateful to the government of Uruguay – and President Mujica in particular – for this historic stand. Very few people can truly comprehend what the cleared men in Guantánamo suffer every day, but I believe Mr. Mujica is one of them. Like President Mujica, Mr Dhiab spent over a dozen years as a political prisoner. Mr Dhiab was never charged, never tried. President Mujica spent two years at the bottom of a well; for most of the past two years, Mr Dhiab has had a team of US soldiers truss him up like an animal, haul him to a restraint chair, and force-feed him through a tube in his nose. The President’s compassion has ended that torture.

“Despite years of suffering, Mr Dhiab is focused on building a positive future for himself in Uruguay. He looks forward to being reunited with his family and beginning his life again. Let’s not forget that Mr Dhiab and the others freed today leave behind many men just like them: cleared prisoners warehoused in Guantánamo for years. Reprieve hopes that other countries will follow the positive example set by the Uruguayan government today, and help President Obama close this shameful prison.”

Carol Rosenberg has more background on the transfer, which has been held up for months even as Dhiab fought over whether he has to be tortured to eat.

The roots of Sunday’s transfer were planted in January when Sloan, the State Department special envoy for Guantánamo closure, traveled to Uruguay to pitch the idea, according to Obama administration officials who spoke on condition of anonymity because they were not authorized to talk about it.

He found the nation’s now 79-year-old president, Mujica, sympathetic as a former 14-year political prisoner who spent much of his captivity in solitary confinement for his guerrilla activities with the Tupamaro revolutionary movement.

In February, Montevideo sent a delegation to the U.S. Navy base in Cuba to interview detainees. They chose six for resettlement, among them Dhiab, a 6-foot-5-inch sickly man whose lawyers said refused to eat not to die but to protest his indefinite detention despite notice that he could leave once a nation agreed to take him.

While some quarters of the U.S. government were pleased with the deal, Secretary of Defense Chuck Hagel was slow to approve it. It sat on his desk for months, awaiting his signature, while intelligence analysts evaluated it. Before he signed it, the White House ordered the truly clandestine transferof five Taliban prisoners to Qatar in a trade for POW Bowe Bergdahl on May 31 — drawing protest on Capitol Hill that Congress had not been informed in advance.

Hagel finally approved the Uruguay release in July and sent the required 30-day notice to Congress.

By then, however, the disclosure had stirred domestic debate in Uruguay in the midst of the presidential campaign to pick Mujica’s successor.

I honestly wasn’t sure Dhiab would survive long enough to be able to take this transfer. I worried that he, like Adnan Latif before him, would be suicided while he waited. And it sounds like his health is still pretty dodgy.

I wish him and his family the best of luck in Uruguay.

If Videos of Feeding Can Be Used as Propaganda, You’re Doing It Wrong

Unsurprisingly, the government has just appealed Gladys Kessler’s order that it release the videos of Abu Wa’el Dhiab. h/t Josh Gerstein

DOJ cited a number of reasons why releasing videos of US service members feeding a indefinitely detained prisoner who had been cleared for released years earlier. But one of them is the propaganda to which our adversaries might use such videos.

 (4) use of the videos in propaganda by entities hostile to the United States;

Apparently, if the rest of the world saw how we fed our indefinitely detained prisoners, they would start bombing us.

But honest, DOJ says, it’s not torture and it’s not punitive.

Update, from an affidavit submitted by Rear Admiral Sinclair Harris. (h/t Ryan Reilly)

There is little doubt that ISIL would use imagery from Guantanamo Bay to further encourage its supporters and followers to attack military and government personnel.

He likens releasing these videos to the release of Marines pissing on corpses and news of the US burning Qurans.

He explains if AQAP got it, they might use it to support a recent claim made in Inspire claiming, “America has lost the most important element of global leadership: morals and principles.”

Gitmo: Broken Minds, Broken Justice

The WaPo reports that Judge James Pohl has just severed Ramzi Bin al-Shibh from 9/11 trial, creating two 9/11 trials. He did so for two reasons: because he could not quickly resolve whether the FBI investigation into defense attorneys has compromised his representation, and because the court has not yet determined whether he is competent to stand trial.

Army Col. James L. Pohl said the court needs to resolve whether Binalshibh has the mental capacity to participate in a trial and whether he needs another lawyer because of a potential conflict of interest after theFBI questioned members of his defense team.

These issues “are not expected to be completed in the near term,” Pohl said in his order.

While both issues are emblematic of the clusterfuck that is Gitmo, I’m particularly struck by the uncertainty whether bin al-Shibh is competent.

Earlier this year, prosecutors asked the judge to evaluate Binalshibh after he repeatedly interrupted court proceedings and had to be removed because he ignored warnings to stop the disruptions. However, neither the government nor Binalshibh’s lawyer argue that he is mentally incompetent.

“The judge’s decision today seems to indicate that the issue of competency is still open,” [bin al-Shibh lawyer James] Harrington said. “We have to clarify that with him.”

After all, the entire point of the torture program was to break these men. They succeeded in doing so with bin al-Shibh (that is confirmed by other sources). But now they can’t try him — it sounds like this severance is probably a tacit admission he can never stand trial, for a variety of reasons.

I would much prefer civilian justice, and have said so numerous times. But this Kangaroo Court in Gitmo has sure succeeded in demonstrating all the problems with the US counterterrorism approach.

SouthCom Commander Calls Gitmo Hunger Strikes “a Joke”

The government has made 10 of the videos showing the force-feeding of Abu Wa’el Dhiab available to his lawyers. They are reportedly watching the video this weekend.

In a piece seemingly meant to diminish concerns about the claims the government tortured detainees, in the guise of force-feeding them, to break up a large hunger strike last year — and to pre-empt whatever claims his attorneys will make after viewing the videos – Southern Command Commander Marine Gen. John F. Kelly gave an interview to the AP. In it, he made the absurd claim that Gitmo does not force feed anyone.

Military officials, who call the hunger strike a propaganda stunt, reject the phrase “force-feeding.” They say the video will show nothing more than guards and medical personnel doing their jobs in a difficult situation.

“We don’t force feed anyone,” said Marine Gen. John F. Kelly, who oversees the prison as commander of U.S. Southern Command.

Worse, in an apparently effort to redefine hunger strike as he also redefined force feed, Kelly called hunger striking “a joke.”

“The whole hunger strike thing was kind of a joke anyway before. Now it’s based on nutrition and a medical exam as opposed to missing meals,” he said.

The general said “very few” detainees now qualify for the feeding procedure and he believes none are truly on hunger strike — “if the definition of a hunger striker is someone who is no-kidding attempting to hurt themselves by starvation.”

Of course, the hunger strikes aren’t about “attempting to hurt themselves by starvation.” They are attempts to regain some sort of autonomy and dignity and — yes — to call attention to the injustice of detaining men who could be released for over a decade.

Whether a judge will ultimately rule that force feeding, as done to the men most committed to hunger striking, amounts to the water torture or not, Kelly’s disdain for the hunger strikers lays bare the coercion involved.

Republicans Refuse to Expand Climate Change Analysis in Intelligence Authorization

I will have a few posts on the Intelligence Authorization that passed the House Intelligence Committee last week.  (h/t Steven Aftergood)

But before I talked about what made it into the bill, I’d like to highlight what isn’t in it: language requiring the Intelligence Community to consider climate change. The minority views reveal,

One of the bill’s weaknesses is that it does not do enough to enhance analysis of the national security implications of climate change, which the Intelligence Community refers to as environmental indications and warning. Whether by driving competition for scare [sic] resources, by opening the Arctic, or by increasing sea level and storm surge near our naval installations, climate change will have profound, destabilizing effects which need to be understood, anticipated, and accounted for. There may be disagreement about the causes of climate change, but the national security consequences are so significant that they cannot be ignored.

The intelligence community has been delving into this area in recent years (and appear to have renamed climate change “environmental indications and warning”). But thus far, the IC has stopped short of treating climate change as the threat to the US it clearly represents.

It appears Democrats on HPSCI tried to change that. And Republicans refused.

Someday the climate deniers will be held responsible for leaving our country vulnerable. And the Democrats will have left a record of those who should be held responsible.

1st Amendment Justice Delayed is Justice Denied for Col. Morris Davis

Bg32jNgCYAApToACol. Morris Davis is, at least for my money, an American hero. He served and fought not only for his country, but for the Constitution he swore to protect. The subject of what happened to him at the hands of the very government he defended deserves a much longer, and deeper, dive than I have time for in this post. We will likely come back for that at a later date as it seems as if the legal case Col. Davis brought to correct the wrongs done to him will likely go on forever.

And the going on forever part is the subject of this post. Col. Davis was scheduled to have a hearing in United States District Court in Washington DC tomorrow in front of Judge Reggie Walton. But the hearing was postponed. And that is the problem, this is the FOURTEENTH (14th) TIME hearing on Col. Davis’ case has been delayed. One delay was due to a conflict on Judge Walton’s part, and one because the offices of Davis’ attorneys at the ACLU in New York were substantially damaged by Hurricane Sandy. Other than that, the delay has been at the hands of an intransigent and obstreperous DOJ. If the actions of the DOJ in relation to Col. Davis are not “bad faith”, it is hard to imagine what the term stands for.

Now, to be fair, it appears the latest delay was at the unilateral hand of the court, as yesterday’s minute entry order reads:

In light of the fact that potentially dispositive motions remain pending, it is hereby ORDERED that the status hearing currently scheduled for Friday, February 21, at 9:15 a.m. is CONTINUED to a date and time to be determined by the Clerk.

The problem with that is that the “dispositive motions” the court speaks of as being “pending” have been “pending” for a VERY long time, since July of last year. And the case itself has been going on since the complaint was filed on January 8, 2010.

Why is it taking so long you ask? Because of the aforementioned bad faith and obstreperousness of the Department of Justice, that’s why. To get an idea of just what is going on here, a little background is in order. Peter Van Buren gives a good, and relatively brief synopsis:

Morris Davis is not some dour civil servant, and for most of his career, unlikely to have been a guest at the Playboy Mansion. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he resigned from that position and left the Air Force. Davis stated he would not use evidence obtained through torture. When a torture advocate was named his boss, Davis quit rather than face the inevitable order to reverse his position.

Morris Davis then got fired from his research job at the Library of Congress for writing an article in the Wall Street Journal about the evils of justice perverted at Guantanamo, and a similar letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court ruled against the Obama Administration’s objections that the suit could go forward (You can read more about Davis’ struggle.)

Moving “forward” is however a somewhat awkward term to use in regards to this case. In the past two years, forward has meant very little in terms of actual justice done.

Yes, you read that right. Col. Davis was fired from the job he truly loved at the Congressional Research Service because he, on his own time as a private citizen, exercised his First Amendment right to speak. As one of Davis’ pleadings puts it:

Col. Davis was unconstitutionally removed from his position at the Library of Congress’ Congressional Research Service for writing opinion pieces in the Wall Street Journal and the Washington Post expressing his nonpartisan, personal views on the failures of the American military commissions established to try detainees at Guantánamo Bay, Cuba. His speech lies at the very core of the First Amendment and exemplifies the kind of speech that federal courts have been most vigilant in protecting from government retaliation.

The full pleading that quote came from, Col. Davis’ response to the government’s motion for summary judgment (one of the “pending dispositive motions”) can be found here and is a good read if you are interested in more background.

That is exactly what happened and what is at stake. And you do not have to take my word for it, Judge Walton thinks it is a solid and valid claim too. Here is language from Judge Walton in an order in late January 2010, not long after the case was filed:

The Court is satisfied that the plaintiff has established, at least based on the record before the Court at this time, that the likelihood of success on the merits and public policy prongs of the preliminary injunction standard weigh in his favor. Essentially, the record before the Court suggests that the plaintiff was terminated immediately after two specific opinion editorials he authored were published in national newspapers. Regardless of the defendants’ contention to the contrary, it appears that the content of the plaintiff’s published opinions was one of the reasons, if not the primary reason, he was fired, i.e., because the plaintiff took a position on the prosecution of detainees being housed at the United States military’s Guantánamo Bay facility which the Congressional Research Service felt would call into question its impartially as to any policy recommendation it would make and any research it would conduct on that issue. This conclusion is supported by the fact that the opinion articles were specifically referenced in the plaintiff’s termination letter, and also the timing of the letter, which was issued only several days after his writings were published. The plaintiff’s likelihood of success position therefore is well-founded, at least with respect to the record the Court now has before it. And as to the public interest prong, it cannot be questioned that government employees retain First Amendment rights. (citations omitted)

So, there is really no question but that protected First amendment rights were involved, and that Col. Davis was wrongfully fired for exercising them. Makes you wonder why the DOJ would string him out and fight so hard in a case that is only about the rights and not even about the money damages he suffered as a result (that would have to be litigated in a separate action).

As the graphic at the top questions, why is the DOJ willing to give free speech rights to a terrorist at Guantanamo and not to Col. Morris Davis? Bad faith is the answer. Complete, scandalous, bad faith.

Lindsey Graham and John McCain: Hypocrisy Tourists in Kabul

Today’s New York Times dutifully bleats to us that Afghan President Hamid Karzai has been “warned” over his plan to release 88 prisoners from the Detention Facility in Parwan over the objections of the US. The warning:

“If these releases go ahead, it will do irreparable damage to the relationship,” said Senator Lindsey Graham, Republican of South Carolina. “There will be a backlash in the U.S. Congress.”

Those doing the warning were hypocrisy tourists Lindsey Graham and John McCain. Missing their third amigo, Joe Lieberman, the duo settled for stand-in John Barrasso to join them on the trip. It appears, however, that Barrasso opted out of the opportunity to open his mouth, as he is not quoted in the Times piece and doesn’t appear in the video interview ToloNews conducted while they were in Kabul:

[youtuber youtube='http://www.youtube.com/watch?v=B92u6yqwwOY']

The hypocrisy emanating from [Linsey, as he is identified in the ToloNews video] Graham and McCain is staggering. Back in December of 2011, Graham led the charge to put remarkably strong rights protection for the Parwan prisoners into the NDAA, as Marcy noted, but Obama then proceeded to gut that language with his signing statement.

The entire issue of the prison at Parwan and the “independence” of Afghanistan to make its own decisions on the fate of prisoners put into the facility by US forces has been a point of contention for years and has seen significant deception on the part of the US. For example, in September of 2012, the US pretended, as they had several times before, to hand over “complete” control of the prison to Afghans, but still claimed to have veto power over the release of any prisoners. The US pretended again in March, 2013 to do the handover of the prison.

The current controversy again seems to come down to whether this veto power still exists and to the underlying wish of the US for Afghanistan to practice indefinite detention without charges, which Afghanistan has resisted instituting.

The relevant section 1024 of the NDAA calls for review of Afghan prisoner status:

But the NDAA wasn’t all bad when it comes to U.S. military detention policy. In fact, section 1024 of the law, spearheaded by Senators John McCain and Lindsey Graham, provides detainees held indefinitely in Afghanistan with the right to a military defense lawyer and a neutral military judge to evaluate whether their detention is lawful and necessary. The provision was not particularly controversial and garnered little media attention; Congress apparently understood that for the U.S. to maintain any legitimacy while imprisoning some 3,000 Afghans in their own country it has to provide them basic rights to defend themselves.

As Marcy noted, though, Obama’s signing statement sought to undercut that authority for an Afghan review. Graham and McCain, on their hypocrisy tour, appear to be agitating for the US veto power that Afghanistan never seems to have agreed to. From the ToloNews article accompanying the video: Continue reading

How Does a Competent Jihadi Act after 21 Months of Solitary Confinement?

I would be shocked if, after today’s appeal hearing in Umar Farouk Abdulmutallab’s trial, he were granted a new trial on competency grounds. On the panel, David McKeague seemed completely skeptical on legal grounds, Jane Branstetter Stranch seemed skeptical on the central competency issue, leaving Curtis Collier (a District Judge on loan from E TN) with the only apparent sympathy for the argument at hand in the least.

As I explained back in May, The central question was whether Abdulmutallab was competent to defend himself. He had fired his federal defenders in September 2010 and the court named a standby counsel, Anthony Chambers, for him. In August of the next year, Chambers submitted a sealed motion arguing Abdulmutallab was not competent. Judge Nancy Edmunds had a hearing on August 17, 2011 and while she addressed several questions to Abdulmutallab, she did not have him evaluated for competency. When he plead guilty on October 12, 2012, she asked standby counsel if he thought Abdulmutallab was competent to plead guilt and after he assented, she accepted the guilty plea.

Both Judge McKeague, to a lesser degree Stranch, and prosecutor Jonathan Tukel emphasized that last point in their discussion: given that the same standby counsel who had submitted the motion on competence did not re-raise it at the plea, they argued, it suggests the counsel agreed with Edmunds’ determination that Adbulmutallab was competent. Abdulmutallab’s attorney Travis Rossman argued that the Chambers could not, at that point, argue his client was totally crazy. Moreover, he argued, the standard for a defendant representing himself was higher and must be concurrent determination (meaning if he were crazy in August 2012 but competent in October 2012, it would still be an issue for a defendant representing himself). But that detail will almost certainly be the one the judges point to to reject this appeal.

Judges McKeague and Stranch also examined a different question. Some of the most obviously crazy things Abdulmutallab did (though this wasn’t and couldn’t have been Chambers’ original argument) came leading up to trial, most notably his bid to wear a Yemeni dagger to his trial. Abdulmutallab intended to martyr himself, Stranch noted, couldn’t these actions be interpreted as an effort to use the trial to make a point of his faith? McKeague pointed out that Abdulmutallab had done some pretty “well thought out logical things” leading up to his attack. He later asked whether his conduct at trial wasn’t consistent with what you’d expect a jihadi to do, to use the trial as a platform to present his views?

Rossman contested that point — noting that had Abdulmutallab let the trial play out, he would have had many more opportunities to parade his jihadi views. McKeague responded that refusing counsel left Abdulmutallab more empowered to make jihadi statements rather than mount a defense. Rossman correctly pointed out this was all getting into speculation about how a competent jihadi would act.

While it didn’t come up in the hearing, remember that the statement Abdulmutallab ultimately made was remarkably muted and took up less than 15 minutes, so by measure of his exploitation of his soapbox, the UndieBomber failed.

All that’s a way of saying that much of the hearing focused on how a competent jihadi would use his decision to represent himself to further his goals of jihad.

There is, however, a significant weakness in the government’s case, one Tukel made obvious with the central ploy he made in his argument.

Continue reading

How to Evaluate the HIG? Exploitation? Dead Bodies?

Carrie Johnson uses the arraignment of Abu Anas al-Libi as an opportunity to consider the success of the High Value Interrogation Group. She weighs the following details:

  • There haven’t been that many cases
  • Some governments refuse access to HIG
  • The group lacks leadership
  • The clean team model has problems

But I think we need to take a step back.

First, while Johnson gives a list of some of the interrogations conducted by HIG, it’s not comprehensive (for example, it doesn’t include Umar Farouk Abdulmutallab, with whom HIG was used in an ad lib capacity — it had just started; and it doesn’t include Manssor Arbabsiar). And it’s not clear we would know every time HIG gets used. For example, there were unnamed officials present at Ibragim Todashev’s death; given that we know HIG was used from the start with Dzhokhar Tsarnaev, it’s fair to at least ask whether any HIG members were present, and whether they remained in the room when Todashev was killed.

That expanded list of HIG interrogees quickly gets you to the question of consequences for HIG interrogees. Just from this possible list, you get questions such as,

  • If HIG was present at Todashev’s interrogation did they have a role in his killing?
  • Al-Libi was brought to New York because of health problems attributed to his choice to stop eating and drinking; did HIG use any food manipulation before this?
  • While I expect him to lose, Abdulmutallab’s appeal on competency grounds remains active; did HIG-induced solitary tip Abdulmutallab over the edge, as his appeal claims (he was reportedly not-altogether there when first detained)?

And these issues, plus the refusal of lawyers for Dzhokhar all could endanger convictions — and certainly, death penalties (which has already been taken off the table in al-Libi’s case) — in these cases.

Then there’s the question of what we’re after: the truth, or exploitation?

I’ve written about exploitation and HIG here, and Jason Leopold and Jeff Kaye showed how that — not necessarily truthful intelligence — was the goal of the torture program.

Exploitation is the use of interrogations not just to get intelligence, but also to support propaganda and/or generate informants. If exploitation is HIG’s goal, we might raise questions about whether both Abdulmutallab and Tsarnaev really implicated Anwar al-Awlaki of their own accord. In the former case, both non-HIG confessions did not implicate Awlaki as anything but an inspiration. In the latter, we know Tamerlan was also influenced by right wing propaganda. If exploitation is the goal, should we really believe the government story about the Scary Iran Plot, particularly given that most details of the “plot” — such as the restaurant targeted in Georgetown — came from our informant in the first place?

I don’t know the answer to these questions. But they seem to be ones we need to answer whether HIG works or not — to say nothing of whether a Democratic society should embrace HIG or not.

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bmaz Welp, #HasPatLynchLandedYet? Cause if Justine Sacco is out of a job and a belligerent jackass like Lynch still has one, the world is screwed
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bmaz Apparently I have a fever. Or meh TeeVee is malfunctioning. Cause otherwise the world has ended and the Cowboys are up by 28. cc: @OKnox
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