Judge Orders Release From Guantánamo Of Kuwaiti Who Met Bin Laden

18.9.09

Judge Colleen Kollar-KotellyFor a crucial update to this article, please see “A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions.”

Yesterday, US District Court Judge Colleen Kollar-Kotelly struck another decisive blow to the credibility of the Bush administration’s detention policies at Guantánamo (and the continuation of those same policies by Obama’s Justice Department), granting the habeas corpus petition of the Kuwaiti prisoner Fouad al-Rabia, a 50-year old aeronautical engineer and a father of four, who had been accused of fundraising for Osama bin Laden and running a supply depot for al-Qaeda in Afghanistan’s Tora Bora mountains. Announcing her ruling, Judge Kollar-Kotelly ordered the US government “to take all necessary and appropriate diplomatic steps” to arrange his release “forthwith.”

Why the courts are more qualified than the government to appraise the Guantánamo cases

The ruling brings to 30 the number of habeas petitions granted in the wake of the Supreme Court’s ruling, in June 2008, that the Guantánamo prisoners have constitutionally guaranteed habeas rights. Just seven petitions have been refused (a success rate for the prisoners of 81 percent), and as the government dithers about what to do with the remaining 225 prisoners, these statistics confirm yet again — as I have been arguing since President Obama took office — that the courts and the prisoners’ lawyers, with their long history of dealing with the cases, are better qualified than the government to understand the extent to which those held at Guantánamo were, for the most part, subjected to extremely dubious post-capture intelligence-gathering, based primarily on the “confessions” of other prisoners, or of the prisoners themselves, in situations where coercion or bribery were prevalent.

Just two days ago, the New York Times revealed that the government’s interagency Guantánamo Task Force, established on Obama’s second day in office to work out whether to charge or release the prisoners, was struggling with the kind of decisions that the courts are already making, and which they will continue to make, as ordered by the Supreme Court. The Times explained that “About 80 detainees have been approved for resettlement in other countries,” and that “About 40 other detainees, including the Sept. 11 defendants, have been referred for prosecution in either a military or civilian criminal court,” but that “The cases of more than 100 of the remaining detainees are undergoing a second review by the prosecution teams, who so far have been unable to reach a consensus about whether these prisoners should be transferred to other countries or prosecuted.”

Fouad al-RabiaThe story of Fouad al-Rabia, which I explain below, ought to demonstrate to the government that much of its caution is misplaced, and that the same applies to its optimism. Al-Rabia was very probably one of the 40 or so prisoners scheduled to face a trial, and, in addition, the allegations against him were regarded as more serious by the government than those against many — if not the majority — of the 110 or so prisoners who are facing a second government review.

The supposed case against Fouad al-Rabia

In the fantasy world of the “War on Terror,” anyone who met Osama bin Laden was a terrorist fundraiser, and anyone who passed through the Tora Bora mountains to escape the war in Afghanistan in December 2001 was a member of al-Qaeda and/or the Taliban, who had been involved in the inconclusive “final showdown” between al-Qaeda and the US.

There were reasons to doubt both allegations, because thousands of people had met bin Laden innocently (briefly introduced to him at religious gatherings or business meetings), and also because thousands of people — civilians as well as soldiers — had fled Afghanistan for Pakistan via the city of Jalalabad at the time of “the battle of Tora Bora.”

In addition, because Osama bin Laden (as well as other senior al-Qaeda figures, and a number of senior Taliban officials who had supported him) had safely escaped from Tora Bora, it was also worth considering that the majority of those who were captured were either civilians, caught up in the chaos, or simple foot soldiers who had been too slow or insignificant to have had an opportunity to escape. Most of the “martyrs” — those who stayed to fight to the death — had achieved their aim, as their corpses littered the mountains after the battle reached its anti-climactic end in mid-December.

For Fouad al-Rabia, sold to US forces by Afghan soldiers who had, in turn, bought him off members of the US-backed Northern Alliance (the Taliban’s opponents), his long years at Guantánamo, and the relentless interrogations to which he was subjected, led inexorably to both sets of allegations being leveled against him.

In November 2008, al-Rabia was put forward for a trial by Military Commission (the “terror trials” introduced by Dick Cheney in November 2001, and revived by Congress in 2006, after the Supreme Court ruled them illegal) and was charged with conspiracy and providing material support for terrorism. The government alleged that he had worked as a fundraiser for Osama bin Laden in Kuwait and had traveled to Afghanistan on several occasions between June and December 2001 “for the purpose of meeting with bin Laden,” and also alleged that he had been “in charge of an al-Qaeda supply depot at Tora Bora,” where he “distributed supplies to al-Qaeda fighters.”

As I explained at the time (in a version of the story that I described in greater detail in my book The Guantánamo Files):

The problem with this story is that al-Rabia has not denied meeting bin Laden or being present at Tora Bora, but has, over the years, provided detailed explanations of how both events were entirely innocent. As a good Muslim, he took time out every year to visit those less fortunate than himself and provide humanitarian aid. In 2001, his attention was drawn to Afghanistan, and when he visited in June he met various Taliban officials and was also introduced to Osama bin Laden, who, he said, explained that his mission was to force US troops to leave the Arabian Peninsula. He said that he was shocked that, when he pointed out that this might allow Saddam Hussein to invade Kuwait again, “Bin Laden said no problem. Let Saddam come in and then something would happen and control would come back.”

Al-Rabia said that he then returned to Kuwait and gained approval for a humanitarian mission from the Kuwaiti Joint Relief Council, but explained that his return to Afghanistan coincided with the start of the US-led invasion in October 2001. Trapped, like many others, he traveled from city to city in search of an escape route, and eventually … ended up in Jalalabad and joined the exodus into the mountains. Because of his age and experience, he said he was compelled by a senior figure in al-Qaeda to look after the “issue counter,” where supplies — food and blankets, rather than weapons — were being handed out.

Overweight and suffering from a variety of ailments, al-Rabia said that he was finally allowed to leave the mountains, traveling with a Palestinian, Mahrar al-Quwari, who is also held at Guantánamo [but was approved for release by a military review board under the Bush administration]. He added, however, that, after staying with an Afghan family for a week, they were betrayed to the Northern Alliance. The US allies then sold them to other Afghans, who imprisoned them in Kabul before turning them over to US forces.

As I also explained, it struck me as highly unlikely that al-Rabia would have been shepherded off the mountains and ultimately betrayed, had he really been associated with al-Qaeda, but in court his lawyers provided an explanation of his experiences in Tora Bora that was even more damning for the government. As Carol Rosenberg described it in the Miami Herald, his lawyers argued at a four-day hearing last month that “the US military had worn Rabia down through relentless and abusive interrogation to the point where he falsely confessed that he ran a supply depot in the Battle of Tora Bora in Afghanistan in December 2001.”

Rosenberg also explained that one of his lawyers, David Cynamon, argued that US interrogators had “learned of Rabia’s Arabic honorific, Abu Abdullah al-Kuwaiti, and confused him with another Kuwaiti who had the same nickname.” Cynamon explained that a man with that particular nickname (literally, the Kuwaiti who is the father of Abdullah) “did handle logistics and supplies” at Tora Bora, but was killed by US bombing. Speaking to the Miami Herald on Thursday, Cynamon added, “The government’s so-called case against Mr. al Rabia was based almost entirely on false ‘confessions’ wrung out of him by months of clearly improper and abusive interrogation techniques taken right from the playbook of the North Koreans and Chinese Communists. Our government should be ashamed of itself — first for using such tactics, then for defending them in court. This is why the writ of habeas corpus matters.”

Khalid al-MutairiFollowing Judge Kollar-Kotelly’s ruling, the Justice Department provided no comment, and did not indicate whether it will appeal the decision, but I sincerely hope that the government follows the judge’s advice and repatriates al-Rabia — and another Kuwaiti, Khalid al-Mutairi, whose habeas petition was granted in July — as swiftly as possible, as he has clearly suffered more than enough.

The abuse of Fouad al-Rabia in Guantánamo

The judge’s full opinion has not yet been made available, but Carol Rosenberg explained that the government’s case had relied on the fact that “military-intelligence agents had accurately concluded that Rabia was at Tora Bora,” and that it had also attempted to make inferences about the supposed threat he posed by noting that, as a younger man, he had “obtained a master’s degree from the Daytona Beach campus of Embry Riddle Aeronautical University.” To me, it sounds innocuous enough that an aeronautical engineer should have studied in the States, but in Guantánamo, anyone who had spent time in the US was regarded as a potential member of a sleeper cell, and, as a result, al-Rabia was subjected to brutal treatment.

Three British men released in March 2004 — the so-called “Tipton Three,” whose story was dramatized in the film “The Road To Guantánamo” — explained that al-Rabia, like dozens of other prisoners, was subjected to prolonged sleep deprivation, in the program known euphemistically as “the frequent flier program.” This involved moving prisoners from cell to cell every few hours, over a period of days, weeks or even months, supposedly to wear down their resistance (although in reality, as a recognizable form of torture, it was more likely to cause severe mental anguish and allied physical side-effects). The men reported that al-Rabia was moved every two hours, leaving him “suffering from serious depression, losing weight in a substantial way, and very stressed because of the constant moves, deprived of sleep and seriously worried about the consequences for his children.”

Al-Rabia was also subjected to the malign policy whereby medical staff at Guantánamo were co-opted as part of the interrogation process. His lawyers explained that, although he suffered from serious stomach pains, he was told that he “couldn’t receive medication unless he cooperated” with the interrogators. It is not known if this contributed to the false confessions identified in court, but despite the litany of cruelty and incompetence outlined above, the most startling fact concerning al-Rabia’s long detention and his final exoneration is that those overseeing Guantánamo were told in the summer of 2002, by a senior CIA intelligence analyst, who, almost uniquely, was also an Arabic expert, that al-Rabia had been wrongly detained.

What the CIA knew, and how it was ignored by David Addington

In The Dark Side, Jane Mayer explained how the analyst had conducted interviews with a random sample of the prisoners, and how his conclusion — that one-third of the men held at the time “had no connection to terrorism whatsoever” — was brushed off by David Addington, Cheney’s Legal Counsel, when John Bellinger, the Legal Advisor to the National Security Council, and General John Gordon, the NSC’s senior terrorism expert, learned of the agent’s report and tried to reveal the information to President Bush, to ask him to urgently review the cases of the men held at Guantánamo. According to two sources who told Mayer about the meeting, Addington dismissed their concerns by declaring, imperiously, “No, there will be no review. The President has determined that they are ALL enemy combatants. We are not going to revisit it!”

This, as Mayer noted, was the crux of the government’s position, as articulated by those who were dictating the policy from the Office of the Vice President. Mayer wrote, “The President had made a group-status identification, as far as he was concerned. To Addington, it was a matter of presidential power, not a question of individual guilt or innocence.”

One of the men who particularly suffered because of Addington and Cheney’s counter-productive arrogance was Fouad al-Rabia, who is the man described by the CIA analyst in an interview with Mayer as follows:

One man was a rich Kuwaiti businessman who took a trip to a different part of the world every year to do charity work. In 2001, the country he chose was Afghanistan. “He wasn’t a jihadi, but I told him he should have been arrested for stupidity,” the CIA officer recalled. The man was furious with the United States for rounding him up. He mentioned that every year up until then, he had bought himself a new Cadillac, but when he was released, he said, he would never buy another American car. He was switching to Mercedes.

This is another small piece of evidence to add to the burgeoning file of complaints against Dick Cheney and David Addington (the one that begins with torture and calls for prosecution, but also includes a whole section on arrogance and incompetence), but it amazes me that no one in the Justice Department, under President Obama, investigated the CIA analyst’s report, and, instead, stuck to the allegations put forward by military prosecutors in the Bush administration’s Military Commission system (overseen by the Convening Authority Susan Crawford, a protégée of Dick Cheney and a close friend of David Addington), and advanced mindlessly towards another humiliation in court.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed. Also see my definitive Guantánamo prisoner list, published in March 2009, and if you appreciate my work, feel free to make a donation.

As published on the Huffington Post, CounterPunch, Antiwar.com and ZNet. Cross-posted on The Public Record.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009), Guantánamo And The Courts (Part Two): Obama’s Shame (August 2009), Guantánamo And The Courts (Part Three): Obama’s Continuing Shame (August 2009), No Escape From Guantánamo: The Latest Habeas Rulings (September 2009), First Guantánamo Prisoner To Lose Habeas Hearing Appeals Ruling (September 2009).

Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009), Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo (August 2009), Obama Brings Guantánamo And Rendition To Bagram (And Not The Geneva Conventions) and Is Bagram Obama’s New Secret Prison? (both September 2009).

18 Responses

  1. Andy Worthington says...

    I recently received the following message from the author Gary Kern:

    Dear Mr. Worthington:

    While writing my article on “Torture and Intelligence in the Global War on Terror,” I consulted your website frequently and found your work to be outstanding and uniquely insightful. My article was published this July in the British journal Intelligence and National Security, and I thought you might like to see it.

    My wife just noticed your article, “Cheney is Crazy,” which reminded me of you. I plan to read it with great pleasure late tonight.

    Best regards.

    GARY KERN
    (author of books on Soviet defectors, etc.)

  2. Andy Worthington says...

    Gary’s article, a 29-page analysis of how torture was implemented in the “War on Terror,” used Philippe Sands’ book Torture Team as its springboard.

    This was my reply to Gary:

    Thanks for the message. Much appreciated.

    May I also congratulate you on the article — spot-on, I thought, and I was particularly pleased that you dealt so thoroughly with the “muscle hijacker” scenario.

    Best,
    Andy

    And for any reader who might notice this, I’d love to enlighten you further, but can only advise you to visit Routledge’s website, as the article is not available free online:
    http://www.informaworld.com/smpp/content~content=a913179998~db=all~jumptype=rss

  3. Andy Worthington says...

    Jeff Kaye just wrote to say:

    Thanks, Andy. You continue to do superlative work on the actual situation of the prisoners. No one brings to life their predicaments, suffering and the injustice visited upon them like you do.

  4. Andy Worthington says...

  5. Andy Worthington says...

    Over on the Huffington Post, arcticredriver wrote:

    We were just discussing Al Rabia in Andy’s comment section a couple of days ago.

    Kudos to Kollar-Kotelly for ordering his release. This raises a question for me — why didn’t the Obama administration order his release? President Obama ordered new reviews in January. If those were meaningful reviews, from first principles, Obama would have ordered his release months ago.

  6. Andy Worthington says...

    Well, in the first instance, it took them a while to go through all the cases. That bit’s understandable, I think, unless you take the point of view (as I do) that it would have made more sense simply to have let the courts carry on dealing with the habeas cases, rather than introducing an executive review process as well (or instead).

    And throughout this process, we’ve heard very little from the Task Force — just the release of Binyam Mohamed, a few other decisions to release prisoners (Ayman Batarfi and Umar Abdulayev, who, incidentally, are still held), and a few numbers thrown around (first it was announced that 50 were cleared, then 60, and now 80, apparently, although no details have been provided).

    Al-Rabia, clearly, wasn’t in that group, meaning that Obama’s own Task Force is neither thorough nor skeptical when it comes to challenging the Bush administration’s supposed evidence. I can’t absolutely guarantee that he was in the 40 or so scheduled to face trials of some sort, but I would expect that to be the case, and for the most depressing overview of how useless the review process has been, you just need to reflect that the Task Force has, after eight months, been unable to decide what to do with half of those still held, whether to release them, put them on trial, or — as has been hinted, to my horror, and yours, arcticredriver — to hold them under a new form of indefinite detention.

    The short answer, then, is that Obama really doesn’t know what he’s doing with Guantanamo.

  7. Andy Worthington says...

    Richrdh wrote:

    Every time I read an analysis written by you I find myself frightened by the innocent simplicity of events that has lead to torture, imprisonment and another life ruined by the US government. Our highly trained government agents were in a state of insane panic. Now we have an administration that is continuing to feed the panic that was started on 9/11. “What if we find out that there was someone we let go, that really knew something or did something,” seems to be the “controlled panic” of going through the same things over and over, while victims continue to wait and hope to get out of the madness created by the 9/11 response.

    I am sure that if I was on the run in my sandals through the Rocky Mountains, and I saw a few blankets I would help other human beings get them, no matter their associations. And if I ran into an international terrorists I would be polite and helpful, simply to survive and get away. Another example of how Bin Laden changed the constitution and showed how fickle we are about basic human rights. It is always the basics we forget or ignore.

  8. Andy Worthington says...

    And this was my reply:

    Thanks, Richrdh. Your comments are much appreciated, and I also believe that you’ve captured the essence of the fear that drives much of the endless prevarication regarding the release of the prisoners, which has, of course, almost ground to a halt since Obama took power.

  9. Huw Spanner says...

    Perhaps I am just being very naive, but is there any possibility that the United States could ever be required to give substantial compensation to the hundreds of innocent people whose lives it has ruined? Isn’t it the norm that if someone is released by a democracy after years in prison without charge or trial, they receive compensation? I would love to see the “case” against someone like Moazzam Begg tested by a lawsuit against the US for wrongful imprisonment. Could that ever be on the cards? There are just so many stories from Baghram and Guantanamo that just make you want to cry.

  10. Andy Worthington says...

    Hi Huw,
    I think Guantanamo has to be closed first, and then the compensation suits follow …

  11. Andy Worthington says...

    The following came from long-time correspondent — and Vietnam War veteran — Charlie Ehlen:

    Andy,
    This is just another amazing tale of the absolute incompetence of the Cheney/Bush gang and the continuing foolishness of the Go-bomb-them group. This man has no business in any jail in any country at all. He was just doing his “duty” as a good Muslim to help relieve the suffering of his fellow Muslims in other countries. He was sharing his wealth with those less fortunate. For this he is in jail? Amazing. He was doing what any decent “Christian” ought to do. To treat the less fortunate as fellow human beings.
    That absolute hypocrisy of the American administrations, our Congress, and the “media” among others is beyond belief.
    It sickens me to see how far down my country has fallen. Yes, my time in the Marines and my tour in Vietnam did make me very wary of “my” government, but I never figured that “we” would ever stoop this low. As I have told you before, it is reports like this that make me ashamed to be an American.
    “We” spend so much money on war and weapons, yet we have people in our own country who are hungry and who have no or very little health care. This is what happens when the “big money” people run the show. The “little people”, the working class and the poor bear the burdens of their empire. We are the ones who are dumb enough or pushed by the economy to enlist in the military and fight the damned wars of choice “decided” upon by our “betters”. What a shit system we have in America today.
    Thank you very much for your continuing excellent reports on the abuses being done by “our” government. Maybe some day, some how, we the people of this country will ask the world for forgiveness. I doubt that we will have much success in that as we should have never allowed this to happen.
    Thank you for your time reading this email reply.
    charlie ehlen
    Pineville, LA

  12. Andy Worthington says...

    Thanks, Charlie. Always good to hear from you!

  13. Andy Worthington says...

    In response to the comment from Huw Spanner at 9, above, after I replied to Huw’s question about compensation by stating that I thought that Guantanamo would have to close first (and adding, in an email to Huw, that it may take years, but that I’m sure that some lawyers will want to pursue it), Huw sent the following reply:

    Well, that would be a great day — though I would like to see it done soon enough for the political fallout to hit people like Cheney.

    One never has much hope — I think I’m right that the US still owes Nicaragua the $2 billion it was fined for illegally mining Managua’s harbour in the 1980s — but the subconscious effect on everyone, both in the “free” world and the not-so-free world, seeing that the US is releasing people after years and years in cages without apology, let along restitution — just a (at best) “Let’s say no more about it” — the subconscious effect is surely very damaging.

    By the way, I had the privilege to meet Moazzem Begg, to interview him for a couple of hours, and was amazed by his lack of bitterness.

  14. Andy Worthington says...

    This was my reply to Huw:

    It would be difficult to image a more eloquent spokesman for the injustices of Guantanamo than Moazzam, wouldn’t it? He’s singlehandedly done an extraordinary job humanizing the prisoners, which is so crucial when fear and dehumanization are so prominent. I’m also glad to have met other ex-prisoners, who have managed to overcome their experiences, and are also remarkably composed and lacking in anger or bitterness. A triumph for the consolations of faith and the strength of human dignity, I think!

  15. Andy Worthington says...

    And Huw replied:

    Here’s a link to my interview of Moazzam if you’re interested – the first “written-up” interview I’d ever done, and I’m still proud of it!
    http://www.spannermedia.com/interviews/Begg.htm

    I first encountered Moazzam at a talk he gave at the East London Mosque after the publication of his book. I think I was the only white non-Muslim man in the large audience, apart from an older Irish Republican, and Moazzam might not even have been aware that there were any non-Muslims present. There was a lot of anger expressed on the male side of the audience and it would have been so easy for him to play to that; but he didn’t. In fact, he was remarkably eirenic. I think he even said that he thanked God for his imprisonment, because it had made him a better man. When I read his book subsequently and saw that the Americans tried to represent him as a kind of Islamist James Bond, it would have been hilarious if it wasn’t also so intolerable.

  16. Andy Worthington says...

    And my reply:

    Thanks, Huw. Good to have made contact with you — and the interview with Moazzam is excellent.

  17. A Truly Shocking Guantánamo Story: Judge Confirms That An Innocent Man Was Tortured To Make False Confessions by Andy Worthington « Dandelion Salad says...

    [...] establish the background to this story, it is necessary for me to return to my initial response to the ruling a week last Friday, before these revelations had been made public, when, based on what I knew of [...]

  18. Judge Confirms That An Innocent Man Was Tortured To Make False Confessions | America 20XY says...

    [...] establish the background to this story, it is necessary for me to return to my initial response to the ruling a week last Friday, before these revelations had been made public, when, based on what I knew of [...]

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