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Legal news from Friday, December 2, 2011

Canada citizen removed from UN terrorist list
Michael Haggerson on December 2, 2011 1:56 PM ET

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[JURIST] Sudanese-born Canadian citizen Abousfian Abdelrazik [backgrounder] was removed [press release] from the UN Security Council [official website] Al Qaeda Sanctions List (1267 List) [text, PDF; materials] on Thursday. Abdelrazik was added to the list while being held in Sudan in 2006 based on suspected ties to al Qaeda [GlobalSecurity backgrounder]. He was seized while visiting Sudan in 2003 on a request from the Canadian Security Intelligence Service [official website], and he alleges that he was tortured [Montreal Gazette report] until he was released in 2004. Abdelrazik was denied the ability to fly home from Sudan because he had been placed on the US no fly list. In July 2006 the US officially designated Abdelrazik as a terrorist [press release, PDF] because he allegedly "provided administrative and logistical support to al Qaeda, and has been identified as being close to Abu Zubayda, a former lieutenant of Osama bin Laden, involved in al Qaeda recruitment and training," and the UN officially added him to the 1267 List. The 1267 List was initially established pursuant to UN resolution 1267 [text, PDF; official website] to control members of the Taliban and their suspected associates. The 1267 List was expanded [resolution 1390 text, PDF] in 2002 to include suspected members of al Qaeda and its associates. Individuals on the 1267 List [1267 fact sheet] are subject to an international ban on a travel, arms embargo and have all of their assets frozen. According to the 1267 guidelines [text, PDF] a criminal conviction or charge is not required for an individual to be placed on the list. Individuals are not informed when they are placed on the list and, prior to 2008, an individual placed on the list was not provided with any information as to why they were placed on the list. Abdelrazik had been the subject of a campaign to be returned to Canada and to be removed from the UN no fly list from several groups, including the International Civil Liberties Monitoring Group (ICLM), Project Fly Home and End Torture Now [advocacy websites]. In Jun 2009 a judge for the Federal Court of Canada [official website] ordered [text] the Canadian government to fly Abdelrazik back home, but upon returning he learned that he had been placed on the 1267 and had not been removed despite being cleared of all wrongdoing. Being on the 1267 List made it impossible for Abdelrazik to get a job because he could not be paid since his bank accounts were frozen and it exposed his family members and friends to potential criminal sanctions if they gave gifts to him. Abdelrazik, along with ICLM and the BC Civil Liberties Association [advocacy website], is currently challenging [complaint, PDF] the Canadian legislation which implemented the 1267 List as a violation of section 7 of the Canadian Charter of Rights and Freedom [materials] and sections 1(a) and 1(e) of the Canadian Bill of Rights [text].

No fly lists and other blacklists have been an issue of international concern in the wake of growing worry over terrorism. In July 2010 the American Civil Liberties Union (ACLU) [advocacy website] filed suit on behalf of 10 US citizens and legal residents against the US government challenging their inclusion on the US no fly list [JURIST report]. Just like Abdelrazik, the ACLU argues that their inclusion on the US no fly list, without ever being informed as to why they were included, has left these individuals stranded abroad. In 2006, the FBI and the Transportation Security Administration [official website] agreed to pay the ACLU $200,000 in attorney's fees to settle a case brought by the civil rights organization in 2003 challenging the government's no-fly list [JURIST report] and requesting the disclosure of records. The documents noted that construction of the list was based on "two primary principles," but that there were "no hard and fast" rules governing decisions of who was put on the list. The US Court of Appeals for the Ninth Circuit [official website] ruled in 2008 that those placed on the government's "no-fly list" can challenge their inclusion on the list [JURIST report] in federal district courts. The court held that the Terrorist Screening Center, which actually maintains the list, is a subsection of the FBI and is therefore subject to review by the district courts. Also in 2008, the DOJ Office of the Inspector General (OIG) [official website] issued a report [text, PDF] saying that the FBI had submitted inaccurate information to the list [JURIST report], that the information was rarely reviewed before its submission and even if discrepancies become apparent they were often left unchanged.

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UN rights chief: refer Syria conflict to ICC for investigation
Sarah Posner on December 2, 2011 1:33 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday urged [statement] the UN Security Council [official website] to refer the situation in Syria to the International Criminal Court (ICC) [official website] for investigation into crimes against humanity committed by the Syrian government. Pillay said that during the eight-month uprising [JURIST news archive] the death toll in Syria has surpassed 4,000 [JURIST report] with tens of thousands arrested and over 14,000 detained as a result of the crackdown. The Human Rights Council established an Independent International Commission of Inquiry to investigate the human rights violations in Syria during the eight-month uprising. Pillay stated:
The Commission's report documents widespread, systematic and gross violations of human rights and fundamental freedoms by Syrian authorities by acts such as: killing of children by beating or shooting during demonstrations, arbitrary detention, torture and ill-treatment. It records at least 256 deaths of children—I understand since increased to 307 children—and instances of schools being used as detention facilities, demonstrating the State's disregard for children's right to education and personal safety. The Commission collected evidence of sexual violence against civilians, especially sexual torture of male detainees and children and sexual assaults upon women in places of detention.
Pillay expressed that if the actions of the Syrian government are not stopped now, the country faces the threat of a civil war.

The Syrian government has faced numerous allegations of human rights violations since March when the first anti-government protests started. On Wednesday the Syrian National Council [official website], a civilian opposition group, agreed to coordinate resistance efforts with the Free Syrian Army, the main military opposition group composed of Syrian military defectors. On Monday the Independent International Commission of Inquiry on Syria reported that the Syrian Arab Republic has committed numerous human rights violations [JURIST report] including torture, sexual violence, use of excessive force and violations of the right to peaceful assembly. Last week, the UN General Assembly's Human Rights Committee approved [JURIST report] a draft resolution [text, PDF] condemning the Syria's human rights violations calling for an immediate end to them. Pillay previously called for an ICC probe [JURIST report] into the situation in Syria in August.

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Madoff trustee wins right to appeal after dismissal of JP Morgan suit
Rebecca DiLeonardo on December 2, 2011 12:59 PM ET

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[JURIST] An order made public Thursday awarded Madoff trustee Irving Picard the right to appeal the dismissal of his $19 billion suit against JPMorgan Chase & Co. [corporate website]. >Judge Colleen McMahon of the US District Court for the Southern District of New York [official website] indicated in her order that, in the interest of an expedited decision, both parties had agreed to move forward with the appeal [Reuters report]. Last month, McMahon dismissed [JURIST report] Picard's suit seeking damages from banks and third parties for the victims of Bernard Madoff's Ponzi scheme. In her decision, Mcmahon concluded that Picard did not have standing to sue on behalf of the victims. Picard was designated by the court in 2008 as trustee [official website] of the assets seized from the Ponzi scheme.

Lawsuits against JPMorgan continue to be brought to court. Last month, two former Bernard Madoff [JURIST news archive] investors filed a proposed class-action lawsuit against JP Morgan seeking recovery of $19 billion for allegedly aiding Madoff in orchestrating his Ponzi scheme. Another case from earlier this year was dismissed [opinion] against HSBC Holdings [corporate website] because the trustee had "no personal stake in the outcome of the controversy." Picard plans to appeal this decision. The first payouts to Madoff's victims were approved [JURIST report] by the court in July. Picard filed almost 60 lawsuits [JURIST report] for victims of Madoff's fraud in December 2010 after being appointed trustee [order] in 2008. Madoff pleaded guilty [JURIST report] to 11 counts of securities fraud stemming from his Ponzi scheme in March 2009, and was sentenced [JURIST report] in June 2009 to 150 years in prison.

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HRW urges DRC government to end post-election violence
Sarah Posner on December 2, 2011 12:15 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday urged [press release] the Democratic Republic of Congo (DRC) government to control the country's security forces and prevent violence against the political opposition following the country's presidential election. HRW reported that 18 civilians have been killed and about 100 seriously wounded during unrest following the presidential elections in the DRC on November 28. HRW reported that the Republican Guard soldiers were responsible for most of the deaths. The report was based on HRW staff who worked alongside Congolese human rights activists, serving as election observers during the presidential election. HRW's statement says:
The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials state that security forces shall apply nonviolent means before resorting to the use of force and firearms. They may use lethal force only when it is strictly necessary to protect life. The Basic Principles state that, "Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law."
HRW also urged the government to take steps to hold the individuals accountable who either participated in the post-election violence or attempted to commit election fraud.

The DRC has faced significant international pressure to ensure fair elections and prevent election violence. On Thursday, top UN officials with the UN Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) [official website] decried [JURIST report] post-election violence in the DRC and called for restraint. MONUSCO urged all parties to remain calm and await the decision of the seven-member Independent National Electoral Commission (CENI) on the preliminary results of the elections. Last month, International Criminal Court (ICC) [official website] chief prosecutor Luis Moreno-Ocampo [official profile] said his office would prosecute individuals involved election violence [JURIST report] in the DRC. The chief prosecutor's warning came just days after the UN Joint Human Rights Office (UNJHRO) [official website] on urged the DRC government to take action to abolish election-related violence [JURIST report] before the presidential election on November 28.

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ICC prosecutor seeks arrest warrant for Sudan defense minister
Matthew Pomy on December 2, 2011 11:26 AM ET

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[JURIST] Chief Prosecutor for the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] began seeking an arrest warrant [official release] on Friday for Sundanese Defense Minister Abdelrahim Mohamed Hussein on charges of crimes against humanity and war crimes committed in Darfur [JURIST news archive] between August 2003 and March 2004. Ocampo began the process by asking Pre-Trial Chamber I to review the evidence against Hussein and decide whether an arrest warrant should be issued. Ocampo believes that there is enough evidence to link Hussein to these crimes and that the ICC should arrest Hussein to prevent him from further actions and continue to investigate the Sudanese government's actions during that time. Ocampo said:
The evidence shows that directly and through Mr. Harun, Mr. Hussein played a central role in coordinating the crimes, including in recruiting, mobilizing, funding, arming, training and the deployment of the Militia/Janjaweed as part of the Government of the Sudan forces, with the knowledge that these forces would commit the crimes.
Ocampo said Hussein is still presumed innocent and will be given an opportunity to defend himself. Ocampo is scheduled to brief the UN Security Council on this issue on December 15.

This will be the fourth case the ICC will be hearing in relation to crimes committed in Darfur. The ICC has already issued warrants for Ahmad Muhammad Harun [arrest warrant, PDF], former Sudanese interior minister and current humanitarian affairs minister, President Omar Hassan Ahmad Al Bashir [case materials, PDF], and Ali Kushayb [arrest warrant, PDF], former senior Janjaweed commander. Sudan continues to be uncooperative [JURIST report] in executing these warrants which prompted Ocampo to file for a non-cooperation ruling under article 87 of the Rome Statute [text] in April, 2010. Sudan has repeatedly rejected the ICC's jurisdiction [JURIST report] over the Darfur situation.

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US appeals court dismisses police officer's suit against AZ immigration law
Jaimie Cremeans on December 2, 2011 11:13 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that a police officer does not have standing to challenge Arizona's controversial immigration law [SB 1070, PDF; JURIST news archive]. Tucson patrol officer Martin Escobar challenged the law [JURIST report] last year, claiming standing as an officer "mandated to enforce SB 1070." He argued that he has standing because, "if he refuses to enforce the Act, he can be disciplined by his employer," and if he does enforce it, he "can be subject to costly civil actions" for "deprivation of civil rights of the individual against whom he enforces the Act." The appeals court rejected these arguments and upheld a decision by the US District Court for the District of Arizona [official website] to dismiss the suit [JURIST report]. The appeals court also rejected Escobar's claim that he has standing as a Hispanic living in Arizona because he "alleged insufficient facts" to show injury based on this claim and that "mere conclusory allegations" are not enough to show injury. Arizona Gover Jan Brewer said in a press release [text, PDF] that she is "pleased" with the appeals court's decision and she will "continue to defend" the law.

Last month, the US Department of Justice (DOJ) urged [brief, PDF] the US Supreme Court [official websites] not to hear Arizona's appeal of a decision [opinion, PDF] enjoining four provisions of SB 1070. The Ninth Circuit upheld an injunction in April before the law ever took effect, and Arizona is now asking the high court [JURIST reports] to address whether the state law is preempted by federal immigration legislation. In a preview of how it might rule should it decide to hear the case, the Supreme Court in May ruled [JURIST report] in Chamber of Commerce v. Whiting [opinion, PDF] that Arizona's controversial employment related immigration law [materials] is not preempted by the Immigration Reform and Control Act (IRCA) [text]. The DOJ sued [JURIST report] the state of Arizona and Brewer over SB 1070 last year, arguing that both the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country."

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Kashmir lawyers call strike for revocation of security laws
Brandon Gatto on December 2, 2011 9:33 AM ET

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[JURIST] Lawyers in Indian-administered Kashmir on Thursday called a one-day strike [AP report] to demand the revocation of what they consider to be harsh emergency laws within their revolt-ridden region. The laws, the Armed Forces Special Powers Act (AFSPA) [text] and the Disturbed Areas Act (DAA) [text], were introduced in India in 1990, and both grant significant authority to the country's army and paramilitary forces to detain people, destroy property, enter, search, and seize without warrant, arrest without warrant, and even use deadly force. The demonstration was led by the Kashmir Bar Association (KBA), [website] whose members met on November 29 and unanimously agreed that they would refrain from entering Kashmir courthouses on Thursday in protest of a government proposal for amending the Jammu and Kashmir criminal procedure rules to incorporate provisions of the AFSPA, which would afford the Armed Forces greater protection from prosecution. The KBA issued its perspective [press release] following the meeting:
[T]he amendment in the Cr.P.C. and RPC to create a protective cover for the armed forces in Jammu and Kashmir is virtually incorporation of the provisions of AFSPA and create permanent protection to the Armed Forces for their anti-human actions and Bar Association should resist such a move and educate the public at large and political parties should mobilize public opinion against this state adventure.
Although Jammu and Kashmir Chief Minister Omar Abdullah [personal website] has publicly stated that the revocation of the AFSPA is inevitable, the KBA believes these revisions to the criminal code may be the government's way of preserving AFSPA protections. Abdullah, on the other hand, has asserted that state government could consider restoring these criminal procedure rules to ensure that the region's security forces are simply given the same protections afforded to those in other parts of the country.

Kashmir has consistently faced criticism of its laws over the course of the year, particularly in light of the uneasy circumstances throughout the region. In October, Abdullah's government amended [JURIST report] its highly-criticized Public Safety Act (PSA) [text], which formerly treated those persons 16 years and older as adults, allowing them to be arrested. Jammu and Kashmir has been plagued with unrest [JURIST report] since it became part of India in the middle of the twentieth century. Although the state is officially part of India, the territory has been disputed by Pakistan and India since 1947. This friction within the region has led to several conflicts, including the Indo-Pakistan wars of 1947-1948 and 1965. There was also a large show of military force by both nations in the region in 2002 which caused international alarm in light of both nations possessing nuclear weapons. India has long-attempted to parry the unrest and a burgeoning separatist movement in the region by detaining human rights political activists.

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Federal appeals court allows payment for some bone marrow donations
Hillary Stemple on December 2, 2011 9:11 AM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] ruled [opinion, PDF] Thursday that a federal law prohibiting payment for vital organs does not apply to all types of bone marrow transplants, opening the door for compensation to be paid to a specific type of bone marrow donors. The court held that the 1984 National Organ Transplant Act (NOTA) [42 USC § 273, PDF], which criminalizes the compensation for the transfer of human organs, does not apply to a type of bone marrow donation known as "apheresis." Apheresis is a procedure developed within the last 20 years whereby the donor undergoes a series of injections over five days in order to stimulate production of hematopoietic blood cells in the blood flowing through the donor's veins. The donor then sits for a period of hours while the donor's blood is filtered through a machine designed to remove the hematopoietic cells. The court analogized the apheresis procedure with the normal procedure of donating blood, and noted that the NOTA does not prohibit compensation for the donation of blood. The NOTA explicitly prohibits compensation for providing bone marrow, but the court rejected the government's argument that the hematopoietic cells should be considered "bone marrow" simply because they were produced by the marrow of the bone. The court stated that if definition of the term "bone marrow" were to include any blood product produced by the marrow, then compensation for blood donors would also have to be prohibited because red and white blood cells are also produced by the marrow. The court noted that they construe the term "bone marrow" to mean the "soft, fatty substance in bone cavities, as opposed to blood, which means the red liquid that flows through the blood vessels." The court also determined that because the apheresis procedure had not been developed when the NOTA was enacted, Congress could not have intended for the Act to prohibit the procedure. They further held that the apheresis method of bone marrow transplantation "is not a transfer of a 'human organ' or a 'subpart thereof' as defined by the statute and regulation" so therefore, the statute does not criminalize the compensation of apheresis bone marrow donors.

The lawsuit challenging the application of the law to bone marrow donation was brought by a non-profit organization called MoreMarrowDonors.org [advocacy website], as well as plaintiffs who claimed they were unable to find bone marrow donors because it is more difficult for ethnic minorities and people of mixed race to find genetic donors for bone marrow. MoreMarrowDonors.org plans to begin a pilot program that would offer $3,000 in compensation [AP report] in the form of scholarships, housing allowances or gifts to charity, to bone marrow donors who undergo the apheresis procedure, in the hopes they will attract more minority donors, thereby increasing the number of potential genetic matches. According to the plaintiffs, nearly 3,000 Americans die each year [San Francisco Chronicle report] while attempting to find a genetically appropriate bone marrow donor. Use of the traditional "aspiration" method of bone marrow extraction, contributed to the lack of appropriate donors due to the invasive, painful method of the procedure which required extraction of the marrow from the donors' bones using a long needle. Under the court's ruling, compensation for aspiration bone marrow transplants remains illegal because it was specifically prohibited by Congress under the statute. Aspiration bone marrow transplants currently account for approximately 30-percent of bone marrow transplants, while the remainder of bone marrow transplants are performed using the less invasive apheresis method.

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Senate approves defense spending bill with controversial detainee provision
Hillary Stemple on December 2, 2011 8:41 AM ET

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[JURIST] The US Senate [official website] on Thursday voted 93-7 [roll call materials] to pass the National Defense Authorization Act for 2012 [SB 1867, PDF], including a controversial provision authorizing the president to use "all necessary and appropriate force" to detain individuals suspected of terrorism. The Senate on Tuesday rejected an amendment to the bill [JURIST report] that would have struck the provision and instituted a timeline to allow further study and investigation on the issue of counterterrorism by Congress. The provision grants the military complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Opponents of the provision fear it could be applied to US citizens threatening their constitutional liberties. Supporters argue that the idea of an American citizen suspected of aiding al Qaeda [GlobalSecurity backgrounder; JURIST news archive] not getting due process is simply a lie. The bill could still face a presidential veto, in accordance with a statement of administration policy [text, PDF] the White House released in November which warned that President Barack Obama [official website] could veto legislation [JURIST report] if it "challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the Nation." The White House maintains the position that the FBI should have unrestricted access and interrogation rights over domestically detained al Qaeda suspects, rather than the military.

The provision was approved [JURIST report] earlier this month by the Senate Armed Services Committee (SASC) [official website] in a unanimous vote after disagreements regarding the provision had blocked their passage for months [CNN report]. The passage by the SASC came shortly after an American Civil Liberties Union (ACLU) [advocacy website] report [PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling and domestic surveillance and wiretapping. The report posits that certain US policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news archive], but stated that other questionable practices remain "core elements of [US] national security strategy today."

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UN officials deplore post-election violence in DRC, call for restraint
John Paul Putney on December 2, 2011 8:10 AM ET

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[JURIST] Top UN officials with the UN Organization Stabilization Mission in the Democratic Republic of Congo (MONUSCO) [official website] decried [press release] post-election violence in the Democratic Republic of Congo (DRC) Thursday and called for restraint. Acknowledging reports from international observers, MONUSCO indicated Special Representative of the Secretary-General, Roger Meece,
shares the concerns expressed by the observer missions, in particular with regard to the reported irregularities and the need to assess their impact on the electoral process. He also deplores the violence that marred the elections in certain areas throughout the country and calls on all political leaders to urge their partisans to refrain from any violence or other acts that may disrupt the electoral process.
MONUSCO urged all parties to remain calm and await the decision of the seven-member Independent National Electoral Commission (CENI) on the preliminary results of the elections. MONUSCO also anticipatorily urged parties to address any grievances they may have through peaceful means, "including the established dispute mechanisms."

The DRC has faced significant international pressure to ensure fair elections and prevent election violence. Last month, International Criminal Court (ICC) [official website] chief prosecutor Luis Moreno-Ocampo [official profile] said his office would prosecute individuals involved election violence [JURIST report] in the DRC. The chief prosecutor's warning came just days after the UN Joint Human Rights Office (UNJHRO) [official website] on urged the DRC government to take action to abolish election-related violence [JURIST report] before the presidential election on November 28. UNJHRO reported 188 cases of human rights violations related to the electoral process during the period between November 2010 and September 2011. a href="http://www.voanews.com/english/news/africa/New-Congolese-Electoral-Body-to-Organize-Next-Years-Election--99733769.html">Established in 2010 to organize the presidential elections [VOA report], CENI replaced the previous election commission that was widely discredited when six officials were arrested for electoral fraud [JURIST report].

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Unprecedented Notice of Warrantless Wiretapping in a Closed Case
Ramzi Kassem
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