Were the Torturers Bypassing OLC in July 2004?

Update, March 13, 2015: The Torture Report clarify this. First, CIA had not yet rendered the detainee, who was indeed Janat Gul. At the meeting, CIA did ask for a memo, as well as permission to torture Gul because (we now know) a fabricator had claimed he was involved in an election season plot. We’ve also learned that regardless of what Comey and Goldsmith approved, the CIA used its torture of Gul, after Goldsmith left, to expand the prior authorizations CIA had obtained to incorporate what they had actually used.
Jay Bybee thinks it’s really damning that Jim Comey attended a July 2, 2004 Principals meeting at which the torture of one particular detainee (he says it was Janat Gul, though there are reasons to doubt it) was discussed.

Comey joined Ashcroft at a NSC Principals Meeting on July 2, 2004 to discuss the possible interrogation of CIA detainee Janat Gul. Report at 123. Ashcroft and Comey conferred with Goldsmith after the meeting, leading to Goldsmith’s letter to Muller approving all of the techniques described in the Classified Bybee Memo except for the waterboard. Id (PDF 26-27)

I’m not so sure. In fact, it appears that the key approvals happened after Comey had left that meeting–and Goldsmith’s “approval” appears to have been an attempt to put some limits on the CIA after the White House had approved the techniques.

Let’s review everything that led up to that meeting.

In April, per the OPR Report, Jack Goldsmith and Steven Bradbury began work on a memo to replace the March 2003 Yoo memo. Meanwhile, in response to the CIA Inspector General Report’s description of torture as it was being administered, Goldsmith advised CIA General Counsel Scott Muller on May 27 not to use waterboarding (and to strictly follow the descriptions of the other nine authorized techniques carefully). On June 7 and 8 news of the torture memos appeared in the WSJ and WaPo. After learning in a phone call with John Yoo about some of the back-channel advice CIA and DOD had gotten, Goldsmith told Muller on June 10 that CIA was going to have to put things in writing if it wanted further OLC opinions on torture (Goldsmith appears to have kept the proof that he faxed it to CIA). On June 16, Goldsmith told Ashcroft he would withdraw the Bybee One memo and then resign. On June 22, in an off the record briefing, Comey, Goldsmith, and Philbin renounced the Bybee One memo. And on June 28, the Supreme Court ruled against the Administration in the Hamdi case.

The entire torture program, the torture architects surely believed, was at risk. In his book, Jack Goldsmith reports that the CIA and White House accused him of “buckl[ing]” in the wake of the Abu Ghraib scandal. And Addington sniped that Goldsmith should give him a list of any OLC opinions Goldsmith still stood by.

In this context on July 2–ten days after Goldsmith publicly withdrew the Bybee One memo and four days after the Hamdi decision–the CIA asked to torture again.

The Vaughn Index of OLC documents relating to the torture program gives a few details of what led up to the request. Document 44 is a fax from CIA to DOJ (note, nothing in the description refers to OLC) noting the CIA has taken custody of a particular detainee.

This is a two-page memo with a fax coversheet, providing legal advice regarding the CIA securing custody of a detainee and use of interrogation methods.

Document 45 is a document–apparently internal to CIA–requesting of CIA’s General Counsel permission to torture a detainee.

This document is a ten page memo from the CIA’s Office of General Counsel requesting legal guidance on the proposed interrogation of a specific detainee.

It appears the Principals meeting on July 2, 2004 occurred within that context: DOJ was trying to reel in a torture program that had gotten out of control, while CIA had a detainee newly in custody and a torture plan they planned to use with him. And so, Jay Bybee revealed, Jim Comey and John Ashcroft attended a Principals meeting to discuss approval of the CIA’s interrogation plan.

But it appears that the crucial discussion about which torture methods to use with this detainee didn’t happen at that meeting. Rather, it happened after the meeting, or at least after the two biggest torture skeptics at the meeting left.

Some time after the meeting that day, Muller sent John Bellinger a memo and CCed it to Comey. The cover sheet twice directed “EYES ONLY NO COPIES,” suggesting Comey shouldn’t share it, perhaps not even with Goldsmith. In addition to the cover sheets, the one page memo–on plain paper, not CIA stationary, explained:

Subsequent to today’s meeting we have had further discussions that clarified the extent of today’s approval of certain techniques. The authorized techniques are those previously approved for use with Abu Zubaydah (with the exception of the waterboard) and the 24 approved by the Secretary of Defense on 16 April 2003 for use by the Department of Defense. I have relayed this information to the CIA’s Counterterrorist Center.

In other words, after Comey and Bellinger left the meeting, “we” (Muller doesn’t explain who all were included in that “we”) “had further discussions” in which they “clarified the extent of today’s approval of certain techniques.”

This is Muller telling Comey (and Bellinger) what got approved. This is CIA telling DOJ what got approved, not DOJ telling CIA what was legal.

Which is why two other details from these documents are so interesting. It appears that CIA sent DOJ (though not necessarily OLC) notice that they had taken custody of a particular detainee. But it doesn’t appear that CIA, at first, sent DOJ (much less OLC) its interrogation plan. And Goldsmith, the guy who was deep in the middle of conducting new legal analysis on torture for both the CIA and DOD, was apparently not at the Principals Meeting at all where the torture approvals were discussed.

Not that it would have mattered anyway, since the real discussion appears to have happened after Comey left.

Now, whether or not Muller intended to keep the torture approval secret from Goldsmith, he did find out about it. On July 7, Goldsmith wrote Muller–referencing and following up on Muller’s July 2 “conversation” with Comey and Ashcroft–noting CIA should adhere to the safeguards and limits laid out in the Bybee Two memo and the DOD guidelines on the techniques.

Contrary to what Bybee insinuates, Goldsmith’s instructions were the same instructions he had given generally on May 27, to stick to the limits in the Bybee Two memo and the DOD techniques.This was not Goldsmith “approving” of the techniques CIA wanted to use–whoever stuck around after Comey and Bellinger had left the Principals meeting had made the approval, not Goldsmith. Rather, Goldsmith was cautioning CIA, for the second time, to stick to what few limits had existed in the Bybee Two memo.

Ten days later, Goldsmith would leave DOJ, three weeks earlier than he originally intended to leave.

One final detail. The SSCI Narrative describes a Principals meeting at which attendees agreed to have OLC do a new memo, that one assessing whether the torture program complied with the Convention Against Torture.

In July 2004, the CIA briefed the Chairman and Vice Chairman of the Committee on the facts and conclusions of the Inspector General special review. The CIA indicated at that time that it was seeking OLC’s legal analysis on whether the program was consistent with the substantive provisions of Article 16 of the Convention Against Torture.

According to CIA records, subsequent to the meeting with the Committee Chairman and Vice Chairman in July 2004, the CIA met with the NSC Principals to discuss the CIA’s program. At the conclusion of that meeting, it was agreed that the CIA would formally request that OLC prepare a written opinion addressing whether the CIA’s proposed interrogation techniques would violate substantive constitutional standards, including those of the Fifth, Eighth and Fourteenth Amendments regardless of whether or not those standards were deemed applicable to aliens detained abroad.

But that was not the July 2 Principals meeting. We know from the CIA Briefing List that Jay Rockefeller and Pat Roberts were briefed on July 15. So the meeting at which the Principals agreed to get an OLC memo on the Convention Against Torture was a second Principals meeting, not the July 2 one, one that may well have taken place after Goldsmith’s departure.

Admittedly, this is all very sketchy. But it appears that, early in July 2004, the White House dictated to DOJ what torture methods would be approved. And only after Congress got involved did the White House agree to niceties like OLC opinions.

46 replies
  1. bobschacht says:

    Rather, Goldsmith was cautioning CIA, for the second time, to stick to what few limits had existed in the Bybee Two memo.

    Ten days later, Goldsmith would leave DOJ, three weeks earlier than he originally intended to leave.

    I’m betting that Addington gave Goldsmith at least one fearsome browbeating, questioned his manhood and his patriotism, etc. etc., such that Goldsmith’s ears were burning, and he decided that he didn’t want a job if it required being dressed down periodically by Addington.

    Bob in AZ

    • emptywheel says:

      Addington gave him the browbeating even before he withdrew Bybee One, some time around June 7 (perhaps bc he refused to endorse the Legal Principles document). I suspect that this incident, and one more (which I’m working on next) made Goldsmith realize that the WH was going to continue to go around him, so staying was futile.

      Remember, too, he was about draft 16 into rewriting the Yoo Memo at this point. I’m guessing the WH didn’t like what he was writing in it.

      • bobschacht says:

        Somehow I don’t think Addington limited himself to one browbeating per person. Maybe he delivered an escalated browbeating after he saw Goldsmith’s draft 15 or 16, and then threatened the go-around if Goldsmith didn’t come up with a better draft.

        Anyway, thanks for a nice reconstruction of events.

        Bob in AZ

  2. jdmckay0 says:

    Excellent, Marcy.


    Contrary to what Bybee insinuates, Goldsmith’s instructions were the same instructions he had given generally on May 27, to stick to the limits in the Bybee Two memo and the DOD techniques.This was not Goldsmith “approving” of the techniques CIA wanted to use–whoever stuck around after Comey and Bellinger had left the Principals meeting had made the approval, not Goldsmith. Rather, Goldsmith was cautioning CIA, for the second time, to stick to what few limits had existed in the Bybee Two memo.

    I see Bybee getting very sloppy here… the kind of thing borne of desperation, when people up to their ass in something bad start acting like they’re stuck in it.

    Maybe it’s wishful thinking on my part, but it seems whole lot of these guys are going public in mutual-admiration, circular references long past necessary for their PR (eg: MSM has let the torture doc “stuff” run it’s cycle a while ago)… except, really, for what you’re doing here on EW.

    We had the Mukaske WSJ OpED (which you referenced), Yoo on the same pages last week, Rove (“I’m proud we waterboarded”) yesterday… multiple statements from Bybee and/or his reps… (I’m sure others not on tip of my tongue).

    Virtually everything I’ve heard/read from these guys also wreaks of desperation: lashing out randomly, utterly ignoring law… often thumbing their nose at it… Even Rotunda’s mail to you, after following that thread, read to me the same in a more controlled way: eg. his trying to disassociate himself from all this when, it seems, there’s good evidence suggesting he may have had a hot-line to the entire process.

    I’ve often wondered if the kind of extraordinary detail you have demonstrated in all this stuff was/would ever make an impact… change something. Given nobody else (that I’m aware) is coming close to what you’re doing here, I’m beginning to think perhaps some folks (DOJ?) is paying attention here, and news of that might be circulating to these bums.

    Never have, but I think I’m going to drop some coin in your bucket. And I hope you can keep up the scrutiny… IMO it’s making a difference.

    jdmckay (nothing clever to say, but I always chuckle at Boxturtle’s quips in this space, so here’s to clever quips in the dark days of exposing a torture state!!!)

  3. earlofhuntingdon says:

    Nice parsing of what appears to be intentionally few and ambiguous records of what actually happened.

    CIA telling DoJ what it intends to do is, as you say, not approval but a request, shoehorned into a “silence means consent” scenario, a kind of bureaucratic and legal jiu-jitsu CIA is trying on DoJ. It’s what an agency does when it didn’t really get approval to do what it has done-already intends to do, but has to cover its ass anyway.

    The phraseology – “further discussions that clarified the extent of today’s approval of certain techniques” – supports that reading. First, it assumes without stating it that something was in fact given approval. Given the purpose and importance of the principals’ meeting, one would think the meeting itself is where that “clarification” would take place, not afterwards among a smaller group of people who, it wouldn’t appear, had the knowledge or authority to do what the CIA letter claims.

    It’s a phraseology that also muddies the water about what was discussed at the full meeting, as well as the “clarification” meeting. It also contains a bit of snark, as a “clarification session” in military and disciplinary-speak means taking a recalcitrant member of a team behind the woodshed.

    • emptywheel says:

      Without spoiling how this all ends, this approval is one of the things that had to go back and be reapproved the following May.

      And remember that they kept Comey significantly in the dark at that point, too.

      • earlofhuntingdon says:

        As you say, and not to spoil your reveal, but it begs the question about what was being approved, when and by whom, and did such “approval(s)” constitute valid ones.

  4. Mary says:

    I’m with you about Comey and Bellinger leaving, but I’m not sure anyone can say DOJ wasn’t represented at that meeting if Ashcroft was there. He is AG at that time and can overrule anything from Comey or Goldsmith – all of OLC is only a delegation from the AG.

    In this context on July 2–ten days after Goldsmith publicly withdrew the Bybee One memo and four days after the Hamdi decision–the CIA asked to torture again.

    I think it’s worth adding to the context that not only did the meeting apparently swing into a higher gear when Bellinger and Comey left, but there has been a lot of talke about Powell and Taft being excluded from meetings and memo circulations on torture.

    And even more importantly to the context – 2004 was an election year, the war was going badly, al-Libi in 2004 was back in US hands and recanting the torture generated info that Powell had presented to the UN and which was proving to be false, and the President and Cheney wanted to shore up the President’s wars and war crimes politically, with anything they could get any way they could get it. They wanted to replace the shocked conscience of America when it saw the Abu Ghraib pictures and was beginning to realize there were no WMDs with some tasty tidbit tortured to order for their political process.

    • earlofhuntingdon says:

      I think the context of 2004 being an election year was critical. Among a host of other problems Karl and Big Dick were attempting to manage going into November was that the l’Affaire Plame was still with us and unresolved, and it was merely flashlight aimed at the growing debacle of Iraq.

      • CTuttle says:

        Either catch the rerun of Countdown after Rachel, or wait for it to appear on You tube…! Btw… As Wilkerson said rather pointedly; ‘I saw all the intel that Powell saw and aside from the FBI interrogations, none of the intel derived from the ‘enhanced techniques’ produced any actionable intel…!’ Not a literal quote, mind ya…! ;-)

      • bobschacht says:

        I think this is the segment you want. #4: Does Bush’s Brain have a Conscience?

        In view of the success of a facebook fan group in getting Betty White on SNL, I’m thinking of setting up a facebook fan group for war crimes indictments. Or is there one already?

        Bob in AZ

        • crossword says:

          Oh my – the Colonel pulled the “I had the highest clearance” card.
          His point is sound: that the Executive Office of the President (enabled by the Counsel and the White House Military Office, in addition to the NSC Executive Secretary) gave security clearances to people like Rove and Fat Boy (Theissen).

          Theissen’s crimes are especially egregious, when you consider it’s two-fold: one, he never should have been read into any Special Access Programs in the first place, even in the course of research for the speech he wrote for the President; and two, he violated federal law by continually talking about it, doing interviews about it and writing a book about it (Regent never sent it to classification review.)

          Now, that sounds off-topic until you consider that Addington and his merry band of rebels throughout the bureaucracy over-classified and wrongfully classified things to cover their ass. That includes everything from ensuring Yoo used classified e-mails to discuss the really damning stuff; to setting up the Office of Special Plans; to compartmentalized DoD programs that have yet to come to light; to the torture itself, hidden even from the NSC. Rabbit hole? No, sir…this was a black hole.

  5. klynn says:

    And remember that they kept Comey significantly in the dark at that point, too.

    Comey quotes to ponder:

    Comey thanked “people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right–and to doing the right thing–whatever the price. These people,” said Comey, “know who they are. Some of them did pay a price for their commitment to right, but they wouldn’t have it any other way.”

    That does NOT mean you, Bybee.

    In discussing his going to work for Lockheed…

    “I like what they do, I like their values and
    I like their leadership. They are a company focused on compliance.”

    And that resignation letter not sent…

    “You are asking me to imagine an apocalyptic situation that I don’t expect to encounter.”

  6. orionATL says:

    “on july 2…. the cia asked to torture again…”

    i want it in the record, your honor, that the cia, having had advice and opportunity to cease torture,


    a request for additional torture sessions.

    the CIA, your honor, was not, as they have claimed, an organization merely following orders.

    the cia was proactively requesting permission to continue torturing.

    furthermore, in a future place and time frame,

    the cia sequesteted (or destroyed) documents that would have made clear they were excercising leadership in using torture as a method of obtaining info from imprisoned individuals.

  7. klynn says:

    And then this Comey email quote:

    In one e-mail, Comey warned that “this opinion would come back to haunt the AG and DOJ. … the people who were applying pressure now would not be here when the shit hit the fan. Rather, they would simply say they had only asked for an opinion. It would be Alberto Gonzales in the bullseye.”

    Comey added: “It leaves me feeling sad for the Department and the AG. I don’t know what more is to be done, given that I have already submitted my resignation. I just hope that when all of this comes out, this institution doesn’t take the hit, but rather the hit is taken by those individuals who occupied positions at OLC and OAG [Office of the Attorney General] and were too weak to stand up for the principles that undergird the rest of this great institution.”

    Of course Bybee is going to point a finger…

    Great post EW.

  8. qweryous says:

    As mentioned previously by Mary @8 there were outside events not favorable to the Bush administration going on in the June and July 2004.

    Several that have some significance:

    From the Ghorbanifar Meetings Timeline LINK:

    February 2004: DOD puts together chronology of meeting including inaccurate description of June 2003 Ghorbanifar meeting (basically hiding the role of OVP personnel)

    April 16, 2004: Assistant Secretary of Defense for Legislative Affairs letter backgrounding the meeting; the letter hides the role of OVP in the meeting

    April 20, 2004: Harold Rhode interview with SSCI

    April 21, 2004: Michael Ledeen interview with SSCI, claims he learned of Paris meeting by “read[ing] about it in the papers”

    April 23, 2004: Larry Franklin interview with SSCI

    May 2004: FBI catches Franklin leaking sensitive information and fl
    ips him

    May 20, 2004: US raids Chalabi’s Iraqi compound

    June 2, 2004: NYT reports that Chalabi alerted Iran that US had SigInt code

    June 8, 2004: SSCI staff imterview with DIA employees

    June 10, 2004: SSCI staff interviews former DIA Director Wilson

    The opening paragraph in the NYT story above (written by JAMES RISEN and DAVID JOHNSTON and published on June 2, 2004) was:

    “WASHINGTON, June 1— Ahmad Chalabi, the Iraqi leader and former ally of the Bush administration, disclosed to an Iranian official that the United States had broken the secret communications code of Iran’s intelligence service, betraying one of Washington’s most valuable sources of information about Iran, according to United States intelligence officials.”

    An embarrassing public failure for the Bush administration on a number of levels. Their intended leader of a ‘democratic Iraq’ committing espionage with a member of the ‘Axis of Evil’.

    On June 16 2004 the 9-11 Commission Chairman Thomas Kean and coChairman Lee Hamilton were interviewed and regarding the connection between Saddam Hussein and 9-11 said the following:

    “THOMAS KEAN: Well, first of all, this is a staff report. It’s not the report of the commission or the commissioners as yet. But the staff in their investigation has found that, yes, there were contacts between Iraq and al-Qaida, a number of them, some of them a little shadowy. They were definitely there. But as far as any evidence that Saddam Hussein was in any way involved in the attack on 9/11, it just isn’t there.

    “MARGARET WARNER: And Mr. Hamilton, you agree with that, do you?

    LEE HAMILTON: Yes, I do. ”

    The above excerpted from “Online NewsHour” at PBS.org. LINK: http://www.pbs.org/newshour/bb/terrorism/jan-june04/commissioon_6-16.html

    This disclosure by the 9-11 commission openly questioned one of the central justifications for the invasion of Iraq. That the Bush administration had tried to prevent and block the 9-11 commission every step of the way only added to the impact of this disclosure.

    The level of effort of the Bush administration to hide and cover up what had been done, and what had been bungled, was increasing. Lies were beginning to be exposed to daylight.

    EDIT: I stopped at two examples when a book could easily be written.

    earlofhuntingdon @ 9 does have another good one posted while I was composing: l’Affair Plame.

  9. orionATL says:

    you will note, your honor, that appended to this pleading is a list of cia “adventures” dating back 70 years.

    no one of these is directly relevant to the case under consideration by this court, however, taken as a historical whole, the contents of the appendix provide, we believe, a long-term record of instances in which the cia INITIATED activity illegal under the laws of the u.s. or of well-established international law.

    we append this historical record to these pleadings because we believe they demonstrate that whatever the year,

    whatever the politically perceived threat to u.s. security,

    whatever the party in power,

    the CIA has repeatedly initiated illegal activity.

    we would add a opinion that the consequences of this lawless bureaucracy’s conduct have been devastating to the long term security interests of the u.s.

  10. klynn says:

    My final Comey quote, I promise!

    James Comey, Intelligence Under The Law, Speech given by the former Deputy Attorney General before the National Security Agency in Fort Meade, Maryland, on May 20, 2005. (my bold)

    Closing paragraphs of the speech…

    “It is the job of a good lawyer to say “yes.” It is as much the job of a good lawyer to say “no.” “No” is much, much harder. “No” must be spoken into a storm of crisis, with loud voices all around, with lives hanging in the balance. “No” is often the undoing of a career. And often, “no” must be spoken in competition with the voices of other lawyers who do not have the courage to echo it.

    For all those reasons, it takes far more than a sharp legal mind to say”no” when it matters most. It takes moral character. It takes an ability to see the future. It takes an appreciation of the damage that will flow from an unjustified “yes.” It takes an understanding that, in the long run, intelligence under the law is the only sustainable intelligence in this country.”

    (my bold)

    Lots of interest chunks in the whole speech. Worth the read.

  11. orionATL says:

    klynn @19

    “…intelligence under the law…”

    what a great statement by comey.

    and how simple and effective it would have been to collect intelligence “under the law”.

    how much superior in quality intelligence collected “under the law” would have been.

    what an opportunity we missed;

    what an abyss we fell into.

    fyi, i see no need for self-limitation.

    • klynn says:

      Thanks. The speech reads like a confession of sorts. Pages 6-7 have quite a bit of content.

      “It can be hard, instead, because the stakes couldn’t be higher. Hard because we are likely to hear the words: “If we don’t collect this type of information,” or “If we don’t use this technique.” or “If we don’t extend this authority.” It is extraordinarily difficult to be the attorney standing in front of the freight train that is the need for “this.”

      The kicker statements are on page 7.

      • qweryous says:

        “We know the damage that comes from the pendulum swings of American public life, the pendulum swings that pushed us so far backwards in the late 1970’s and again in the late 1980’s, and surely will again.”

        Church Committee and Iran Contra ‘backlash’?

        Edit: Also came up with and discarded election of Reagan and Bush First.

  12. qweryous says:


    Jim White has a series of Reader Diaries at the Seminal concerning chain of command issues.

    The most recent is:
    “Central Command: McChrystal Does Have Command Authority Over Detainee Operations Unit” March 12, 2010. LINK:

    Two more of his diaries are:
    “McChrystal Given a Monopoly on Power in Afghanistan” from March 5, 2010. LINK:
    http://seminal.firedoglake.com/diary/33387 and

    “More Shell Games:Command Structure for US Prisons and Special Operations in Afghanistan” dated March 6, 2010. LINK:

    The diaries and comments are worth taking the time to read.

    Good work on this Jim White.

  13. orionATL says:

    klynn @24

    fascinating and deeply informative for many reasons, among them that comey is making the mirror argument of the cheney clutch.

    comey is arguing: DESPITE (terrorism…..), but because we have laws, we must …

    cheney and perin are arguing: BECAUSE (terrorism)… our laws, including fundamental, 250-yr old guarantees to our citizens about being protected from their government,

    must be suspended.

  14. wavpeac says:

    I hope there is a book coming. Where’s the fundraiser…for the book on torture by Marcy…and what will it be called? The compilation of this information is so important. Thank you, thank you!

    • BayStateLibrul says:

      “Pulling a Legal Fast One” by Marcy Wheeler… How the Bush Administration
      Succeeded in Developing a culture of torture….

  15. fatster says:

    O/T: Who could have imagined?

    Racial disparities in sentencing rise after guidelines loosened

    “The study by the U.S. Sentencing Commission reignited a long-running debate about whether federal judges need to be held to mandatory guidelines in order to stamp out what might appear to be inherent biases and dramatically disparate sentences.

    “The report analyzed sentences meted out since the January 2005 U.S. v. Booker decision gave federal judges much more sentencing discretion.”


  16. fatster says:

    O/T: To the 9th! We deserve it.

    Obama chooses 1st young appeals court nominee

    “Goodwin Liu, 39, is an unabashed liberal legal scholar who, if confirmed, could become a force on the federal appeals court for decades. There’s talk that in time, the Rhodes Scholar, former high court clerk and current assistant dean and law professor at the University of California, Berkeley, could be the first person of Asian descent chosen for the Supreme Court.”


  17. orionATL says:

    prostate dragon @33

    such gentle flowing music.

    reminds me it’s easter tide and time for several listenings to the b- mass.

    robert shaw’s wonderful version, of course.

    thank you, p.d.

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