CIA OIG’s Wild Parsing about What Was “Depicted” on the Torture Tapes

I wanted to point out a somewhat weedy detail about how the CIA IG Report describes the torture investigation as compared to how the CIA’s Office of Inspector General described that investigation in court filings last year.

As you’ll recall, after the CIA admitted to the destruction of the torture tapes in 2007, the ACLU filed to hold the CIA in contempt for not having revealed the existence of the torture tapes earlier in their torture document FOIA. In response, the OIG submitted a filing and a declaration describing why they hadn’t revealed the existence of the tapes.

The filing explained that CIA had no obligation to search its operational files in response to the ACLU’s FOIA unless those files had been the subject of an investigation.

Moreover, the videotapes were not responsive to Plaintiffs’ FOIA requests because the activities depicted on the videotapes were not the subject of a CIA OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by CIA OIG. Under the Central Intelligence Agency Information Act (“CIA Information Act”), the CIA’s operational records are exempt from search or review in response to FOIA requests unless an exception to the Act applies. One exception is where the records requested are the specific subject matter of an investigation by CIA OIG into allegations of impropriety or illegality in the conduct of an intelligence activity. 50 U.S.C. § 431(c)(3). Here, CIA OIG did not conduct an investigation into allegations of impropriety or illegality relating to the interrogations on the videotapes prior to their destruction. Therefore, the tapes were exempt from search and review in response to Plaintiffs’ FOIA requests up to the time of their destruction. [my emphasis]

And the declaration went on to make certain claims about the relationship between the CIA IG investigation and the subject matter of the torture tapes.

In January 2003, OIG initiated a special review of the CIA terrorist detention and interrogation program. This review was intended to evaluate CIA detention and interrogation activities, and was not initiated in response to an allegation of wrongdoing.


At no time prior to the destruction of the tapes in 2005 did OIG initiate a separate investigation into the interrogations depicted on the videotapes.


Stated another way, the activities depicted on the videotapes that were reviewed in 2003 were not the specific subject matter of the OIG investigation of allegations of impropriety in Iraq, or any other investigation conducted by OIG. [my emphasis]

Yet here’s what the IG Report says about why it initiated an investigation.

In November 2002, the Deputy Director for Operations (DOD) informed the Office of Inspector General (OIG) that the Agency had established a program in the Counterterrorist Center to detain and interrogate terrorists at sites abroad ("the CTC Program"). He also informed OIG that he had iust learned of and had dispatched a team to investigate [redacted] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorized interrogation techniques with a detainee, ‘Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate. Separately, OIG received information that some employees were concerned that certain covert Agency activities at an overseas detention and interrogation site might involve violations of human rights. In January 2003, OIG initiated a review of Agency counterterrorism detention and interrogation activities [redacted] and the incident with Al-Nashiri. [my emphasis]

In other words, the IG Report says that DDO James Pavitt requested OIG investigate "allegations [of] unauthorized interrogation techniques" used on Rahim al-Nashiri. But we know al-Nashiri’s interrogations were taped.

So how in the hell was OIG claiming that the IG investigation was not"initiated in response to an allegation of wrongdoing," when the second paragraph of the report states that Pavitt asked OIG to launch the investigation because of an allegation of wrongdoing?

It sure sounds like a question ACLU might want to have OIG answer for Judge Hellerstein. But if I had to guess, I’d say the OIG was parsing wildly when it made this claim.

As the IG Report passage above makes clear, OIG set out to investigate two things: the abuse of al-Nashiri, and other abuses conducted (presumably) in Afghanistan. And I’m guessing they formulated their description of the investigation generally to shield these earlier complaints. The IG’s description of their investigation (included as Appendix A) seems to support that more general claim:

OIG tasked relevant components for all information regarding the treatment and interrogation of all individuals detained by or on behalf of CIA after 9/11. [my emphasis]

So in spite of the fact that the OIG says it was asked to investigate the al-Nashiri abuse and in response it launched this investigation, I’m guessing that the fact that they included all CIA interrogations in the scope of their review makes them think it’s cool to now claim specific allegations had nothing to do with it. 

And I suspect there’s another layer of wild parsing going on here. Twice, the OIG claims that the "interrogations" and "activities depicted on the videotapes" were not the "specific subject" of their investigation and/or were not the subject of a "separate" investigation. As I pointed out in March, the inventory suggests the  CIA used a different approach with taping al-Nashiri’s torture sessions than they used with Abu Zubaydah. With Abu Zubaydah, they taped and kept everything (aside from the tapes that were blank or broken by the time OIG got them); with al-Nashiri, they appear to have just cycled two (or three) tapes, rewinding and taping over earlier sessions with each session.

In other words, the only al-Nashiri interrogations "depicted" on the torture tapes were of the last several, the ones that never got taped over.

So while the OIG did, in fact, initiate the investigation in response to allegations of abuse that were taped on those videotapes, those abusive interrogations probably were no longer depicted on the tapes by the time OIG reviewed the tapes in May 2003.

Frankly, I suspect there is still more parsing going on. Given that OIG appears to have gotten Abu Zubaydah’s pscyhological profile as early as January 31, 2003, I suspect that Abu Zubaydah was rather more central to the investigation than the IG Report itself lets on. 

But for the purposes of this declaration, the OIG seems to be claiming that,

  1. The torture tapes depict mostly Abu Zubaydah interrogations with just a few al-Nashiri interrogations
  2. The investigation was not launched specifically in regards to the Abu Zubaydah (and few al-Nashiri) interrogation sessions depicted on the tapes
  3. The investigation was launched in response to allegations of abuse of al-Nashiri that were no longer depicted on the tapes when the investigation was launched
  4. But since the investigation was scoped much more broadly than focusing specifically on the abuses of al-Nashiri, even the fact that the abuse had been taped (but then taped over) doesn’t mean that OIG should have revealed the existence of the torture tapes.

And using this logic, CIA is hoping to avoid being held in contempt.

There’s one more thing, though. 

CIA’s OGC watched the video tapes in November and December 2002, before Pavitt asked OIG to investigate the abuse of al-Nashiri (one wonders if that’s when 11-plus tapes mysteriously became blank and broken).

An OGC attorney reviewed the videotapes in November and December 2002 to ascertain compliance with the August 2002 DoJ opinion and compare what actually happened with what was reported to Headquarters. He reported that there was no deviation from the DoJ guidance or the written record.

It appears there was a formal report from this review–because Jello Jay requested it, twice, before they destroyed the torture tapes in 2005.

In May 2005, I wrote the CIA Inspector General requesting over a hundred documents referenced in or pertaining to his May 2004 report on the CIA’s detention and interrogation activities. Included in my letter was a request for the CIA to provide to the Senate Intelligence Committee the CIA’s Office of General Counsel report on the examination of the videotapes and whether they were in compliance with the August 2002 Department of Justice legal opinion concerning interrogation. The CIA refused to provide this and the other detention and interrogation documents to the committee as requested, despite a second written request to CIA Director Goss in September 2005.

So where is this report and why didn’t CIA get that in a Vaughn Index?

49 replies
  1. emptywheel says:

    So anybody want to make a bet that the OGC lawyer who reviewed the torture tapes in late 2002 to make sure they were in compliance with the Bybee Two memo was John Rizzo, the guy who had helped scope the memo in the first place?

    It would make a nice excuse for Jose Rodriguez to mysteriously bypass Rizzo in 2005 when looking for advice on whether he could destroy the torture tapes, and therefore to bypass the guy who knew all the reasons this was evidence that should not be destroyed.

    • MadDog says:

      I might as well take your bet. I’ll go for Scott Muller and a ham sandwich.

      Minor wording jumble:

      1. The torture tapes depict mostly Abu Zubaydah interrogations with just a few al-Nashiri investigations

      I’m guessing “investigations” should be “interrogations”.

    • MadDog says:

      …It would make a nice excuse for Jose Rodriguez to mysteriously bypass Rizzo in 2005 when looking for advice on whether he could destroy the torture tapes, and therefore to bypass the guy who knew all the reasons this was evidence that should not be destroyed.

      Ya’ gotta wonder whether CIA IG Helgerson and staff were also deliberately kept out of the tape destruction advice/decision loop. Though not a part of the formal CIA management or legal structure, the OIG crew sure knew that what they had themselves witnessed was likely evidence of some judicial import.

  2. MadDog says:

    And secondly, regardless of how the CIA and its OIG tried to weasel-word about the tapes, I’ve got to believe that Judge Hellerstein hasn’t bought any of it since he’s been pretty consistent in refusing to let them off the hook.

    The only major gripe I have, and it’s a common complaint of mine with all Federal judges, is that they’re too timid in slapping down these obvious Executive branch acts of contempt of court.

    Whether it’s Hellerstein, Walker, Sullivan, Bates, or a host of others, who are the recipients of deliberate government duplicity, they never really seem to make the miscreants pay.

    Somebody needs to step up to the plate and take a few hard swings.

  3. BoxTurtle says:

    The report is in Cheney’s man-sized safe. They didn’t put in into the Vaughn index because they don’t want to talk about it.

    Boxturtle (What do I win for being the first to answer your questions correctly?)

  4. MadDog says:

    …So where is this report and why didn’t CIA get that in a Vaughn Index?

    This is a excellent question given Jello Jay’s specific identification of specific CIA OIG Tape report.

    I wonder if he saw it after the date of Laura’s post of December 7, 2007?

    I wonder if DOJ AG Holder and Co. have seen it? And John Durham?

    Twould seem to be highly relevant to the DOJ if not to Judge Hellerstein.

  5. BoxTurtle says:

    On another note, this is likely to THOROUGHLY piss off Hellerstein. And he wasn’t exactly happy with the Government lawyers to start with.

    The man seems to have the patience of a saint, but I wonder how much more of this he’s going to tolerate before someone gets fined.

    Boxturtle (He’s got ‘em dead to rights. The next move belongs to the judge)

  6. MadDog says:

    Btw EW, since we’re picking the CIA OIG report’s bones clean here, do we know which sites the report is referring to here (from pages 6-7 you quoted of the 158 page PDF):

    …In November 2002, the Deputy Director for Operations (DOD) informed the Office of Inspector General (OIG) that the Agency had established a program in the Counterterrorist Center to detain and interrogate terrorists at sites abroad (”the CTC Program”). He also informed OIG that he had iust learned of and had dispatched a team to investigate [redacted] In January 2003, the DDO informed OIG that he had received allegations that Agency personnel had used unauthorized interrogation techniques with a detainee, ‘Abd Al-Rahim Al-Nashiri, at another foreign site, and requested that OIG investigate…

    (My Bold)

    At first, I was thinking the first redacted site one was Thailand and the second being perhaps Poland where KSM was waterboarded (ya, I know I’ve got Poland on the brain *g*), but I don’t remember that Poland was actually in play yet.

    And per Wiki (linky no work–database connection error):

    …During the course of his tribunal he claimed additional confessions he had made, while being tortured. He was ostensibly the last of the al-Qaeda suspects to be videotaped, as he was waterboarded in Thailand by CIA officers who questioned him…

    It looks like that second site was Thailand. So where was that redacted first site?

    Afghanistan? Per the ICRC report, there’s this:

    …All fourteen were detained in the country of arrest for periods ranging from a few days up to one month before their first transfer to a third country (reportedly Afghanistan, see below) and from there on to other countries.

    …Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantanamo in September 2006…

    …For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan…

      • emptywheel says:

        The first site, I’m pretty sure, is Afghanistan. I think I hit this a bit while you were off fishing. But the report seems to be discussing two different entities under the CTC program (and specifically excludes joint interrogations with JSOC). One is the HVD program, and one is the initial screening stuff they were doing in Afghanistan, I think.

        • MadDog says:

          Based on KSM’s Wiki entry, I jumped over to a referenced NYT article and found the confirmation that it is indeed Afghanistan:

          …The hunt for Khalid Shaikh Mohammed involved the entire American intelligence establishment, with its billion-dollar arrays of spy satellites and global eavesdropping net. But his capture came down to a simple text message sent from an informant who had slipped into the bathroom of a house in Rawalpindi, near the Pakistani capital, Islamabad.

          “I am with K.S.M.,” the message said, according to an intelligence officer briefed on the episode.

          The capture team waited a few hours before going in on the night of March 1, 2003, to blur the connection to the informant, a walk-in attracted by the offer of a $25 million reward. The informant, described by one American who met him as “a little guy who looked like a farmer,” would later get a face-to-face thank you from George J. Tenet, then the C.I.A. director, at the American Embassy in Abu Dhabi, intelligence officials say, and he was resettled with his reward money under a new identity in the United States.

          Within days, Mr. Mohammed was flown to Afghanistan and then on to Poland, where the most important of the C.I.A.’s black sites had been established…

          (My Bold)

        • MadDog says:

          …But the report seems to be discussing two different entities under the CTC program (and specifically excludes joint interrogations with JSOC). One is the HVD program, and one is the initial screening stuff they were doing in Afghanistan, I think.

          It sounds reasonable to me. The initial screening stuff in Afghanistan by joint CIA/JSOC folks for immediate tactical/operational intel (i.e. Where is OBL right now?), and then passed off to the black sites as HVDs to the longer-term strategic CIA folks for the plans/plots/players interrogation/torture.

  7. tjbs says:

    In the Alantic this month Andrew Sullivan says Bush should follow Reagans example,after being caught trading arms for hostages, admit he tortured and say he’s sorry and it will all be better. Make me throw up, why don’t ya.

  8. LabDancer says:

    Ooo, we do so love our puzzles!

    [1] 50 USC 431 does not contain the word “wrongdoing”.

    It does contain the word “impropriety”, but only in the context of distinguishing between that word and the term “violation of law”.

    [The words:

    “impropriety or violation of law”

    cannot be read as:

    “impropriety of law or violation of law”,

    by operation of the principle of interpretation that assumes Congress did not intend redundancy, unless it specifically stated such an intention — which in any event it did not here].

    [2] 50 USC 431 contains the word “investigation”

    [of course–it’s why there’s all the parsing]

    and it also contains the word “review”

    [under the rule of thumb Any Port In A Storm]

    but only in the sense of describing the agency’s responsibilities when confronted with a FOIA.

    To be clear, there is no suggestion of the word “review” having anything whatsoever to do with the investigatory authority of the OIG, or for that matter any other one of the entities specifically identified as authorized to “investigate”.

    I don’t suggest there’s anything in this section that implies any limitation on the ability of any of the entities authorized to “investigate” to label a particular function it’s carrying out a “review”, an “inquisition”, an “inquiry”, or a zucchini; or in using an internal protocol that, to distinguish among the sorts of authorized activity it might conduct, chooses to categorize one sort of as an “investigation” per se.

    All that might carry some significance within the bureaucracies charged with carrying out the authorized activities,

    [such distinctions typically carry huge significance in bureaucratic settings, not just in my experience, but infinitely more credibly according to the seminal works on bureaucracy in government, written by Machiavelli, or in the case of the Greatest Treatise Never Told, unwritten by Cheney]

    but none of that alters what Congress intended & what the law provides.

    So: is your double-pronged question is in the first part really an invitation to play yet another round of the home version of the BCA’s popular variation on Where’s Waldo? [per Boxturtle: Where’d Addington Bury It?], and in the second part self-answering?

    • emptywheel says:

      Let me make sure I understand you.

      Here’s the language of 50 U.S.C. § 431(c)(3), the exemption named in the OIG filing:

      (3) the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of Central Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.

      And whether or not the IG investigation reviewed the content of the videotapes, we know the OGC conducted an investigation into the videotapes very specifically to review whether there was a violation of law and/or improprieties shown on them.

      So the OIG filing is moot–because OGC should have revealed the tapes (and teh review) itself.

      That was sort of my instinct when I asked about that review. But I hadn’t actually read the language of the statute.

      • MartyDidier says:

        I enjoy my time here because I’m always learning something new. Given what I know from my past I’m especially interested in learning WHY so many IMPORTANT things have been able to be screwed up. So please correct me if I’m wrong but it appears we do have a process (reasonably or so), but the process for some reason, isn’t being followed, right? And in some cases the important details are actually being ignored and passed by and there seems to be almost too many to keep tabs on.

        Anything to do with the CIA from what my past experience has shown needs to be more than questioned. I would think that an outside regulation group might help more. It’s always best to keep the fox out of the hen house.

        Marty Didier
        Northbrook, IL

      • LabDancer says:

        That’s also correct — & as usual you add value in moving the concept forward.

        There’s nothing illegal in selecting the CIA’s DAIG to provide this declaration; but resorting to that office gives off an appearance, at least, of an intention to use it like one of the behaviors widely associated with membership in the genus struthioniform [an impression conveniently supported in the lucky declarant’s surname]:

        “This myth likely began with Pliny the Elder … who wrote that ostriches “imagine, when they have thrust their head and neck into a bush, that the whole of their body is concealed.”

        Although the declaration contains several assertions about the role of her office, I don’t see an assertion by Ms Rea [aka Rhea?] that she even purports to declare on behalf of the agency per se. And I’d have a hard time accepting that’s slipped past the ACLU team or the judge.

        It probably goes without being said, but it’s also further support for the idea that the team responding to this application has been adhering to a larger strategy of limited, fragmented, painfully slow roll-outs.

    • BoxTurtle says:

      I wish I could believe that Addington buried it. But the fact of the matter is that there’s a copy in a filing cabinet near Holders office. And Holder and Obama both knew it existed, both know it’s contents, and neither wants it public anymore than BushCo does.

      I’m starting to think the only way the executive branch will cooperate with a judge is if there is a credible threat of impeachment behind it.

      Boxturtle (Go ahead, fine them. The money just goes from one ledger to another)

      • LabDancer says:

        Well, there’s a huge space between belief and fact, and in this day & age this sort of thing simply isn’t going to lead to impeachment; but I’m inclined to think you’re right, on Holder at least. IMO the dangers in conflating accountability with animus are both constant & practical. Holder has to respond to the Congressional judiciary committees, and both have at least a few members capable to going after this.

  9. tjbs says:

    Remember the talk about softening up suspects before they were questioned?
    Are there three parts to this puzzle?
    Interrogation, detention or sitting in a cell and just shits and giggles beating the living shit out of somebody before they entered the questioning chambers. There’s some parsing going on to be sure. Do you want to answer my questions or leave through the room you just experienced the bad cops? That way they asked to be tortured and it’s all the suspects fault.

  10. drational says:

    is there a Vaughn Index for the tapes reviewed by the CIA OGC in nov-dec 2002 as compared to what the OIG reviewed? Is this how the OIG knew that there was a 21 hour period of Zubaydah’s interrogations missing from the later review?

    • emptywheel says:

      My understanding is that the IG got there by comparing the interrogation log with the actual tapes.

      Remember that, in the case of Abu Zubaydah, they claimed to be taping everything, 24/7.

  11. Mary says:

    So you have former DCIs, including DCIs during the torture and investigations conducted by OIG and Congressional hearings – swearing up and down to Obama that everything anyone could have any questions about for the CIA program had already been investigated (by the CIA) and that “career prosecutors” with DOJ had looked into everything and it was hunky dory; but then you have the CIA and DOJ under oath telling the court that no one ever investigated anything on the torture tapes that were destroyed.

    I kinda think that letter to Obama needs to get into the record in response to DOJ “career” lawyers who are making the CIA filings to the court, about what it is that the “career” lawyers at DOJ didn’t bother to do. Bc it sure sounds like Tenet and Goss and Hayden are telling the President something different than DOJ is telling the courts.

  12. klynn says:

    Jay’s interview on the Ed Show is still hanging in the back of my mind. His comment about the intel committee was quite powerful.

  13. WTFOver says:

    Yoo’s Bad Lawyering, Not Investigations, Threatens CIA…..91026.html

    Bush administration lawyer John Yoo’s latest screed in the Philadelphia Inquirer relies on false arguments and conservative intelligence folklore to blast John Durham’s inquiry into CIA’s torture program. Yoo bemoans the “decimation” of US intelligence capabilities and the “persecution” of CIA, but predictably takes no responsibility for how his own egregiously sloppy legal advice exposes to legal jeopardy the military and intelligence personnel whom he unctuously praises.

    Apparently, Yoo’s reading of history is about as good as his lawyering, which has taken lumps from nearly every quarter.

  14. Peterr says:

    Marcy, “parsing” is to take an existing statement and subject it to various close readings.

    What you are describing is not parsing but revisiting, twisting, and ultimately lying about what was originally claimed.

  15. fatster says:

    O/T (well, kinda) “Patriot” Act. Jefferson help us!

    Battle Looms Over the Patriot Act
    Published: September 19, 2009

    WASHINGTON — “As Congress prepares to consider extending crucial provisions of the USA Patriot Act, civil liberties groups and some Democratic lawmakers are gearing up to press for sweeping changes to surveillance laws.

    “Both the House and the Senate are set to hold their first committee hearings this week on whether to reauthorize three sections of the Patriot Act that expire at the end of this year. The provisions expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation.”

    More. More. More.

  16. Leen says:

    Read this one up at the pond today. Clear skies, crisp air, ponds in southeastern Ohio still great for swimming

    Andrew Sullivan
    Americans want, and need, to move on from the debate over torture in Iraq and Afghanistan and close this tragic chapter in our nation’s history. Prosecuting those responsible could tear apart a country at war. Instead, the best way to confront the crimes of the past is for the man who authorized them to take full responsibility. An open letter to President George W. Bush.

  17. fatster says:

    Greenwald provides another good complement to EW’s excellent analysis here. Do not miss his Update to this article.

    CIA Directors conclude CIA shouldn’t be investigated for murder
    SATURDAY SEPT. 19, 2009 08:20 EDT

    “In a truly shocking development being treated as major news, seven former CIA Directors — including all three who served under George W. Bush — jointly concluded that the CIA should not be criminally investigated for torture deaths, and they have written a letter to President Obama (.pdf) expressing that view.  Do leaders of organizations in general ever believe that their organizations and its members should be criminally investigated and possibly prosecuted for acts carried out on behalf of that organization, and do CIA Directors specifically ever believe that about the CIA?  Has a CIA Director ever advocated that CIA agents be criminally investigated for illegal intelligence activities?”


    • tjbs says:

      God damned right!!!
      You have earned the right to stand atop the pile of rubble you have documented for us to purview. Thanks and Thanks again. It’s taken my stomach out twice this year.

  18. tjbs says:

    I’ve posted this elsewhere also
    Eric Holder.
    You sir, serve us by applying the constitution as it applies to all people below the law.
    We helped write and confirm the Convention Against Torture signed by President Ronald Reagan.
    That convention calls for the detention of any suspect believed of being involved in torturing human beings post haste. This prevents a suspect from intimidating ,as the 9 former CIA chief wish to do, those who helped carry out the POLICY from being swayed. Dick Cheney went on national and admitted to being the top in the chain of command ,as we now know, to have known about the proposed use of a war crime ,waterboarding. Khalid Sheickh Mohammed was water boarded 183 times and one official claimed he lasted under water 1 1/2 minutes on the ,admitted on TV, orders from Dick Cheney ,if not higher up. You sir are obligated to take DICK CHENEY into custody now.
    Will you execute the demands of the Convention Against Torture or resign ?

  19. tbsa says:

    The Geneva convetion requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial.

    Case closed, let the prosecutions begin.

  20. theresa43 says:

    Trouble is I believe the average American doesn’t want to hear about this CIA and torture stuff anymore. And the above mention report and info is way above their heads. Witness the ignorant and stupid people out there slamming health care reform. But aside from that keep on truckin.

  21. Jkat says:

    the law ..and justice ..sweet justice .. will prevail .. in the end ..

    there can be no other outcome.. as surely as this is america .. we have a heritage to live up to and torture isn’t a part of it ..

    this blotch must be and will be excised … imo ..

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