US Supreme Court Refuses to Allow Abu Ghraib Torture Victims to Sue Military Contractors


With what can only come across as cynical timing, the US Supreme Court on Monday, the day after the UN International Day in Support of the Victims of Torture, declined without comment to take up a lawsuit filed on behalf of 250 Iraqis — formerly prisoners at the notorious Abu Ghraib prison near Baghdad, home of the most significant scandal in the Bush administration’s “War on Terror,” which surfaced in April 2004 with the publication of photos showing the torture and abuse of Iraqi prisoners in US custody at the prison. The prisoners were seeking to hold Titan Corporation, which provided Arabic translation services, and CACI International, which provided interrogators, accountable  for their role in the torture and abuse of prisoners at Abu Ghraib in 2003 and 2004.

Although a handful of serving US military personnel — eleven in total, referred to by President Bush as “a few bad apples” — were prosecuted for the abuse at Abu Ghraib, they were, in fact, scapegoated for implementing a policy that came from the highest levels of government, and which was designed to ensure that all aspects of the detention regime were dependant upon the whims of interrogators — as at Guantánamo, from where the system was exported by its commander, Maj. Gen. Geoffrey Miller, who was sent to “Gitmoize” Abu Ghraib with the results that the world saw to its horror in April 2004.

The case that was shunned by the Supreme Court on Monday, Saleh v. Titan Corporation, was an important attempt to extend accountability from the military to the contractors who make up such a huge part of America’s post-9/11 war machine, and who, unlike their official military counterparts, appear to be as much beyond the law as the senior administration officials — and their lawyers — who implemented, approved and oversaw every aspect of the “War on Terror” that should have shocked the conscience — involving torture, “extraordinary rendition,” secret prisons and the miseries of arbitrary detention at Guantánamo. As Human Rights First explained, “Army investigations implicated at least five private contractors in similar crimes,” although “no contractor was ever charged.”

In dismissing the case, the Supreme Court has ensured that the final word on contractors’ responsibilities rests with the D.C. Circuit Court, the appeals court in Washington D.C. that is populated by several notable right-wing ideologues who have been steadily demolishing the habeas corpus rights of the Guantánamo prisoners over the last 18 months until the “Great Writ” has been rendered meaningless. The judges include Senior Judge A. Raymond Randolph, notorious for backing every piece of legislation relating to Guantánamo under the Bush administration that was subsequently overturned by the Supreme Court.

For the Abu Ghraib ruling, another of Randolph’s aged colleagues, Senior Judge Laurence Silberman — also responsible for outrageous outbursts about Guantánamo, masquerading as legal opinion — led a panel that ruled, by two votes to one in September 2009, that “claims against the contractors were precluded under a doctrine the two majority judges called ‘battlefield preemption,'” as the Christian Science Monitor described it, or, as Human Rights First put it, that “the contractors were involved in combat activities and therefore, should be protected from lawsuits.”

In the Circuit Court’s majority opinion, Judge Silberman wrote, “During wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim [for damages] arising out of the contractor’s engagement in such activities shall be preempted.”

Silberman also regarded it as significant that, although the government acted swiftly to prosecute military personnel in connection with the torture and abuse at Abu Ghraib, it failed to tackle contractors for their role. “This fact alone,” he wrote, “indicates the government’s perception of the contract employees’ role in the Abu Ghraib scandal.”

The Christian Science Monitor also explained:

The appeals court also ruled that the former Iraqi detainees were not empowered under the Alien Tort Statute to file a lawsuit in a US court seeking to enforce a violation of the law of nations. The judges said that although torture committed by a government is a violation of a settled international norms, the same act by a private contractor is not.

Judge Silberman claimed, “Congress has never created this cause of action,” stating that, although Congress had “empowered US residents to sue foreign governments for torture,” as the Christian Science Monitor described it, “federal law makers excluded from the law the possibility of filing a similar suit against American military officials overseas, or private individuals working with the US government overseas.”

In the important dissenting opinion, which should have provided an avenue for the Supreme Court to follow, Judge Merrick Garland noted that he would have allowed the Iraqis’ lawsuit to proceed against both Titan and CACI, declaring:

No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors –- who were neither soldiers nor civilian government employees. Neither President Obama nor President Bush nor any other executive branch officials has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the executive’s ability to wage war. To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are NOT within the military’s chain of command, and that such contractors ARE subject to civil liability.

Following the Circuit Court’s ruling in September 2009, Human Rights First’s International Legal Director Gabor Rona stated, “This decision, which was supported by the Obama administration, informs the world that the United States of America has no intention of obeying its moral and legal obligation to provide enforceable remedies to victims of sadistic acts of torture alleged to have been committed by military contractors.” Human Rights First also noted, “Under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the United States must provide ‘enforceable’ or ‘effective’ remedies to victims for acts of torture and serious abuse.”

In their brief urging the Supreme Court to take up the case, the Iraqis’ lawyers were, of course, aware of these issues, although they specifically made a point of mentioning how private contractors outnumber official US personnel in Afghanistan and Iraq, and how allowing the Circuit Court’s ruling to stand allows them to break the law with impunity.

“There are 217,832 contractor personnel providing services to the United States in Iraq and Afghanistan, answering not to the military chain of command but to for-profit corporations who receive a total of over $5 billion annually for their services,” Vincent Parrett wrote in the brief to the court. “This is a case about the commission of war crimes by private actors who violated state, federal, and international law,” he added, pointing out, crucially, that the Circuit Court’s holding “has eviscerated one of the most effective means of deterring them from violating the law.”

In response to the Supreme Court’s dismissal of the case, which was largely ignored in the mainstream US media, Human Rights First issued a press release deploring the decision, and noting the unusual circumstances that preceded the decision, whereby, “[b]efore deciding whether or not to hear the case, the Supreme Court asked the US government, which is not a party to the suit, its opinion on the case,” and that the government, “[w]hile noting the shortcomings of the appellate court’s ruling … recommended that the Court should decline to hear the case, effectively denying victims a remedy.”

In a specific criticism of the Supreme Court decision, which I endorse fully, Gabor Rona stated:

Last week on the International Day in Support of Victims of Torture, President Obama proclaimed that the United States “will remain a leader in the effort to end torture around the world and to address the needs of torture victims.” Nothing undermines the credibility of the United States as a voice for human rights and for respect for the rule of law more than its hypocritical dismissal of the suffering of torture victims at the hands of the US government and its agents.

Note: Also see Human Rights First’s amicus brief arguing that the decision by the D.C. Circuit to immunize the criminal conduct of private military contractors is incompatible with the United States’ international legal obligations, and Human Rights First’s letter to the Acting Solicitor General, in March this year, urging the government to advise the Court to hear the case and reverse the decision that denies victims a remedy.

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) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in June 2011, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

68 Responses

  1. Andy Worthington says...

    On Facebook, Aaron Ben Acer Quinn wrote:

    yet more corruption of the courts being exposed… criminals running the world…. well, for now

  2. Andy Worthington says...

    George Kenneth Berger wrote:

    Digging and sharing soon.

  3. Andy Worthington says...

    Christine Casner wrote:

    Shared. #&*%^$!!@#*^&$#!@*&!!!

  4. Andy Worthington says...

    Kathy McConaghie wrote:


  5. Andy Worthington says...

    George Kenneth Berger wrote:

    Two things struck me about this article. First, shouldn’t *any* dismissal at any level be accompanied by a written motivating statement? Second, I didn’t know that there were private firms of interrogators. What regulations do they operate under? Ought they to exist? This shocked me.

  6. Andy Worthington says...

    Karl Larson wrote:

    the Supreme Court. .like Congres and the President. .do what the Corporate Masters TELL them to do

  7. Andy Worthington says...

    Aaron Ben Acer Quinn wrote:

    but as was established as part of the Nuremberg Principles – following orders is no longer an excuse

  8. Andy Worthington says...

    Thank you, my friends, for your comments — and thanks also to the 95 people who have shared this in just an hour. It reassures me that there are many people out here for whom the crimes that took place at Abu Ghraib — emblematic of the crimes committed elsewhere in the “War on Terror,” including Guantanamo — are not forgotten, and that the Bush administration’s pitiable attempts to shift the blame onto military personnel and to shield its own senior officials, the CIA and now contractors from accountability are a disgrace.
    And yes, George, both of your points are valid. On the first, however, the Supreme Court has an established track record, but the latter is more recent — and much more troubling. What this case demonstrates above all, I think, is how, when privatization extends to war, those involved, like elsewhere in the privatized world, are not regarded automatically as being accountable to anybody for anything they do. I have a problem with private profiteering on a fundamental basis, but my hostility is only increased every time I discover that those endorsing and profiting from the privatization of everything also want to remove themselves from any kind of scrutiny or accountability. That goes against everything all kinds of social reformers fought for — and sometimes died for — over many centuries, and is thoroughly unacceptable.

  9. Andy Worthington says...

    HEidi PEterson wrote:

    USA refuses accountability for crimes … USA wants people to follow their leadership but irrationally threatens them and deceives them and sadistically punishes them when the people have no idea why….. Rational people run the other way.

  10. Andy Worthington says...

    Karl Larson wrote:

    we ARE the Evil Empire.

  11. Andy Worthington says...

    Jackie Sherman wrote:

    I shared.. 🙂

  12. Andy Worthington says...

    Thank you, HEidi, Jackie and Karl (again). Your comments arrived while I was posting my previous message. HEidi, you have succinctly captured some of the key elements of US hypocrisy.

  13. Andy Worthington says...

    A Pierre Yurovski wrote:

    The Supreme Court has traditionally been conservative throughout US history and sided with the Executive branch during times of “war.”

  14. Andy Worthington says...

    A Pierre, all the more reason to be grateful to Justice Stephens for his guiding role in opposing the excesses of the “War on Terror” from 2004 (Rasul v. Bush) to 2008 (Boumediene v. Bush), and to lament that (a) without him, the Court under a Democrat is now more right-wing than under Bush on “national security” issues, and (b) the crazy ideologues of the Circuit Court have now undone all his hard work and consigned everyone left in Guantanamo to a US in which habeas, for them, is completely worthless.

  15. Andy Worthington says...

    Anna Ketley Becker wrote:

    Andy–the office of U.S. President is a puppet office and as such–there WILL be NO President who truly represents the people EVER in U.S. NOW–our votes were stolen and the U.S. supreme Court ruling on citizens united gives complete control to corporates and those who represent them. Best to support the Progressive Democrats as America’s last hope for a return to our Democracy. The U.S. is an oligarchy controlled by top 2% wealthiest Americans holding on to their greed of billions and not wanting to GIVE anything to the U.S. in form of taxes. Also, research WTO and G20–these worldwide corporate commissions have seized political leaders in ALL westernized nations–a visit to Canada where REAL news is seen provides REAL news coverage and support for this. The world labor union President stated that there would be NO wars IF the top 2% were to give to their respective nations solely 2% of their wealth. These same groups threatened Obama’s life and the lives of his family at least 7 times prior to his inauguration.

  16. Andy Worthington says...

    Willy Bach wrote:

    Andy, re-posted. I just heard Michelle Bachman on Democracy Now saying she would not appoint any activist judges. But these so-called conservative judges are creating terrible precedents while wrecking everything that is/was any good about the US legal system. The only outcome I can see is that no one will believe that it is possible to get justice in the US legal system (which makes up rules as it goes along and silences all critics). This is an unfortunate environment which can only see despair in which some people will resort to violent means.

  17. Andy Worthington says...

    Willy Bach wrote:

    It also means that when assessing US compliance with international treaties, the US has been downgraded to one notch above North Korea.

  18. Andy Worthington says...

    Maryam Mad wrote:

    America needs a revolution as soon as possible!! Shut off your NaZi (National Zionist) M-TV and GET REAL ♥ STAY HUMAN ♥

  19. Andy Worthington says...

    Betsy Kawamura wrote:

    This is one of the Clear reasons why I don’t live in the USA… and Obama is supposed to personify Nobel Peace Laureate values ????

  20. Andy Worthington says...

    Betsy Kawamura wrote:

    Andy, you should really go Global on this piece of news… Imagine impact on general Mid Eastern situ… Bloody hell… again, no wonder I no longer live in the USA…

  21. Andy Worthington says...

    Dejanka Bryant wrote:

    It’s disgusting, Andy. Donald Rumsfeld and his high ranking officials can walk free again. The US Government is well aware that this could open the can of worms. To this day there was not one serious investigation about the torture and abuse of prisoners. All those Pentagon and CIA investigations in the past were ridiculous. It really became an agony to watch American politicians talking from their pedestals about the protection of human rights. Shared.

  22. Andy Worthington says...

    Ferdinand Gajewski wrote:

    Damn Supremes.

  23. Andy Worthington says...

    Thank you, Anna, Willy, Maryam, Betsy, Dejanka and Ferdinand.
    I was away for a few hours, watching “The Oath,” the film about former bin Laden bodyguard Abu Jandal and his brother-in-law, Salim Hamdan, which I’m reviewing tomorrow on Press TV. Fascinating, very powerful film, which I’ll write more about when the show is available online.
    So thanks again for all the interest. Betsy, I think the story is going global here, as 225 people have already shared it, but I know what you mean. I don’t know if it’s been picked up in the Arabic-speaking world, but the coverage as been pretty thin in the West — apart from the CSM piece, there’s little besides Fox News (a decent enough article), and an AP report that didn’t get much coverage.

  24. Andy Worthington says...

    Dejanka Bryant wrote:

    It’s 3 am and I am still reading about this very interesting case.

  25. Andy Worthington says...

    Joe Chmielewski wrote:

    A dark part of our American history.

  26. Andy Worthington says...

    Ferdinand Gajewski wrote:

    There are quite a few when you start counting them up. The USA after all is exceptional.

  27. Andy Worthington says...

    Karen Todd wrote:

    living in a time where crime is not considered illegal- or prosecutable – ughhh!

  28. Andy Worthington says...

    Lilia Patterson wrote:

    Surely you mean a certain very small number of individuals have been put in place to defend a very small number of other certain individuals to prevent authentic, objective and neutral justice according to US and international laws from taking place. Isn’t that conventionally known as obstructing the law, corruption or perversion of justice?

  29. Andy Worthington says...

    Lemis Al Naseri wrote:

    This is flipping stupid. I am not surprized because the US supreme court would not be a supreme anymore after they get sued by those innocent people. Ridiculous, cowards and pathetic! If they will not see how silly they are. Then maybe the lord will help them understand what they have done is wrong. IF THEY HAVE ANY MORALS!! I find this utterly shameless the US supreme court also in how much corruption this is. I wander how much more corrupted there government is! May the lord help the iraqis.

  30. Andy Worthington says...

    Karen Todd wrote:

    spitting in the face of………and defying law…when a government goes so far as to gut the constitution and then proceeds to – write in exceptions to law- such as terminal incarceration- the right to torture- it seems that they are operating on the premise of high perversion- and showing the world that matters of “law” anywhere are of little or no concern to them – what matters is their will and action – and they will act however they see fit to further their political agenda –

  31. Andy Worthington says...

    Lemis Al Naseri wrote:

    Its like a propaganda to them. And very true Karen for your post. ^

  32. Andy Worthington says...

    Karen Todd wrote:

    the united states is doing this -….what human rights- we are also flying in the face of acceptable weaponry as well- (to my mind- there is no such thing as acceptable weaponry- but that is another matter-) in the case of the united states- we now are using DU missiles- dropping them like they are so much candy at an easter day parade- we are seeking to use other- mini nuclear weapons- we are employing predator drones that are supposedly operating with surgical accuracy when it comes to hitting their targets- like…if they were still alive – we might ask the multitude of innocent men-women and children- who have instead been killed-targeted by these supposedly superior-accurate weapons………..god only knows what sort of chemical cocktail we are also serving up to these people over there- who have the misfortune to be living in the middle of all of this-they are lying to the american people as to the reason that we are imposing our will and then there are the men like dick cheney- and rumsfeld- and bush who are getting fabulously wealthy …profiteering on all of this- war profiteering is criminal the last time i checked-

  33. Andy Worthington says...

    Lilia Patterson wrote:

    It just shows what a farce it is for someone like Hillary Clinton to claim that ‘human rights’ is her ‘concern’ – in relation to her support for the ‘Arab Spring’ in particular after her and her husband would have profitted substantially from their shares in Halliburton from the invasion of Iraq and also of the construction of the detention centres involved in torture that Halliburton have built in various parts of the planet, including being involved in Guantanamo Bay as well. Halliburton as a company and how they operate for sure should be investigated thoroughly as part of any investigation into war crimes.

  34. Andy Worthington says...

    Lemis Al Naseri wrote:

    Well USA will be overly corrupted now. That after it has been so corrupted, there will be nothing left but to start to become uncorrupted. Who knows if that will ever happen.

  35. Andy Worthington says...

    Karen Todd wrote:

    it is a farce- this administration – from the top down – has no concern for human rights- and flies in the face of it- it is sad-and what is even sadder- is the amount of people in the states- that do not quite understand the climate and the feelings of the administration-the people who feel that we are only over there fighting these wars to try and bring freedom-democracy to the people there- that the united states- is a beacon of light and hope- for peoples of every nation- i do not feel that this is the case- and i wonder if it ever really was-

  36. Andy Worthington says...

    Monique D’hooghe wrote:

    andi, this is the first article that i am going to translate into dutch for the press here… will keep you updated if where and when it gets posted/printed…..
    so angry now about that disgraceful supreme court decision….

  37. Andy Worthington says...

    Karen Todd wrote:

    a quick look at the numbers- and also the type of people that are wasting their lives away stuck in the prison system here in the united states – could give an example as to the importance to human rights in our country- the number of poor people- the unemployed ….under employed and working slaves- stuck in the world of no prospect for better living conditions or better wages- and state governments are seeking to make the number of poor/even greater- by taking away bargaining rights- slashing budgets for social uplift- ……………crazee! and then for those that are stuck in this shell of a life to be told that they are lazy- that they wouldn’t be poor if they worked harder- ….oh my gosh! told that by men who take full advantage of the nanny state and take every dime it gives them and lobby for more for themselves…..crazier…..

  38. Andy Worthington says...

    Karen Todd wrote:

    investigate the carlyle group- that’d be the bush and the bin laden family- as well as halliburton

  39. Andy Worthington says...

    John Dwyer wrote:

    Lady Justice left the American Department of Justice many years ago and hasn’t been heard from since.

  40. Andy Worthington says...

    Karen Todd wrote:

    lady justice was informed that her name is on the terrorist watch list and has since gone into hiding….
    she can’t do anything to help anyone else till she first figures out how to clear her own name….

  41. Andy Worthington says...

    Kricket Schurz wrote:

    This is certainly no surprise. Corporations own the court. Corporations own our politicians and the wars are fought for corporations to profit. In fact, corporations now own our elections and the American people – just few pay enough attention to get where we have been taken – so back to hoping they wake up before things get worse…

  42. Andy Worthington says...

    Mui J. Steph wrote:

    I suggest people look at FOIA autopsies and investigations. The murder and torture appears to be legion in these camps/prisons, in Afghanistan and in Iraq. For the courts to deny justice . . . well that can only mean one thing to me. Basically they’re protecting serial killers (the Navy Seals, the CIA, the contractors, . . . ) IMHO.

  43. Andy Worthington says...

    Usman Latif Khawaja wrote:

    how noble of the court to look after the gallant contractors

  44. Andy Worthington says...

    Mui J. Steph wrote:

    I don’t care what idiotic justifications Silberman and the rest of them make. They’re firewalling for criminals.

  45. Andy Worthington says...

    Usman Latif Khawaja wrote:

    this is justice served and delivered from door to door in a cia vehicle as well

  46. Andy Worthington says...

    Mui J. Steph wrote:

    I have to disagree just a little, Usman. I think its justice served in the name of war profiteering, so its a whole universe of “special interests” including the CIA but mostly for-profit types.

  47. Andy Worthington says...

    Thanks, everyone. I’m so glad to see that this has struck a nerve. Perhaps the mainstream media needs to do its research a bit better to establish what people want to hear about.
    And Monique, I’m very glad to hear about you translating it into Dutch. Do let me know what happens …

  48. Andy Worthington says...

    Kricket Schurz wrote:

    not until millions of us are willing to actually fight and see all of our war criminals brought before tribunals and the truth told will anything be done and that is not just those in this century – the Clintons are fat-cats today for advocating genocide and she goes on promoting the violation of human rights in other places as if she is some noble American hero. Georgie boy was not the first war criminal in his family either. In fact, if all the truth from the last century came out rather than drug dealers filling our prisons – the politicians who have advocated using human lives for profit would – but that day is not going to come. So – the atrocities continue as we play the game of elect the lesser of evils – as if it matters who sits in the high office with corporations controlling all including the high court.

  49. Andy Worthington says...

    Betsy Kawamura wrote:

    Andy, I will be in ICC Hague and would be interested to know what if anything can be done at Hague level?? of course USA is ‘conveniently’ not part of Rome Statue which was pretty ‘cunning’ move by Bush… I think i will be in London 15- 19th August. I would like very much to meet up ??

  50. Andy Worthington says...

    Rafik Khoury wrote:

    The US Supreme Court exemplifies the Failure of the Justice System. Justice for Bribes. IPO “Justice” on Wall Street, only the Very Rich allowed to participate. Back to the Thirty Silver pieces ER

  51. Andy Worthington says...

    William W Halle wrote:

    Insurgents Suing? Absurd

  52. Andy Worthington says...

    Kricket Schurz wrote:

    Absurd is when our troops are captured – tortured and the same guys who advocate these atrocities call for charges for war crimes charges against our “enemies.”

  53. Andy Worthington says...

    Thanks, everybody. This has now been shared by 514 people, which is excellent news!
    Betsy, good luck in The Hague. I’m sure you’ll have some fascinating conversations, at least! As for London, I’d love to meet but I’m pretty sure that’s when I’ll be away on my family holiday. Drop me a line nearer the time.
    And Kricket, yes. Those are the kinds of double standards that responsible Americans worry about — what will happen when someone seizes and horribly abuses Americans, and there won’t even be any ability to pretend to claim the moral high ground?

  54. Andy Worthington says...

    Kricket Schurz wrote:

    Andy we lost that high ground long ago – we just force our supposed morality on others whether they like it or not…

  55. Andy Worthington says...

    Agreed, Kricket. Sad but true.

  56. Andy Worthington says...

    David Spero Rn wrote:

    Wow. So now you can be tortured but can’t even sue the torturers. Women are being imprisoned for having miscarriages. Antiwar activists raided and jailed. Full blown police state is here.

  57. Andy Worthington says...

    Thanks, David. Good to hear from you.

  58. Andy Worthington says...

    Kricket Schurz wrote:

    David – it seems you are one of the few to understand that all of this is more than just keeping Americans “safe.”

  59. Andy Worthington says...

    Sylvia Martin wrote:

    Often the court uses the reason of lack of standing to sue. . . but this is still a rotten decision. Contractors must be accountable.

  60. Andy Worthington says...

    Yes, indeed. Thanks, Sylvia. Good to hear from you.

  61. Gail Coleman says...

    I am just sickened by this! Shared–as it is the only way anyone will hear about it in America.

  62. Jon Adams says...

    nuremberg: “I was just following orders” IS NO EXCUSE.

  63. Andy Worthington says...

    Thanks, Gail and Jon. Good to hear from you.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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