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February 05, 2006

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Bob

Is there really such a thing as "war on terrorism?" I thought of that as a marketing of fear program, like "war on drugs" and "war on crime." These aren't real wars, just labels to justify their agendas. If the "war on terror" is a real war, who are the combatants? The US Military and ... what other country? You can't declare a war on terrorists. Terrorists are criminals and should be left to the police, not the military! Unless, of course, you have a hidden agenda.

The Law Fairy

Actually, Bob, you're completely wrong. There are far too FEW wars being waged. Even domestically, we're not using our resources to be fighting some of the most damaging, devastating enemies *on our own soil*!!

Therefore, I say we declare a war on ugliness. It helps no one and it only hurts career prospects, relationship prospects, and self esteem. Every day innocents are subject to a risk of ugliness attacks -- out of nowhere! Last night you may have gone to bed with smooth, clean skin, but in the morning you wake up only to find it has backstabbed you with a giant pimple! Innocent citizens doing their best to eradicate ugliness from their own lives nonetheless face a constant risk of ugliness encounters just walking down the street. Why should law-abiding citizens have to live in fear that their neighbors may suddenly turn ugly on them, subjecting them to their ugly faces and ugly bodies?? The man who was one day your good neighbor, tomorrow is mowing his lawn with his shirt off, exposing a generous belly and a hairy back -- as conscientious citizens, we must fight back! Everyone would be better off if we focused our resources on fighting off ugliness. President Bush, I implore you to help us secure a brighter, more attractive future for our children, a world where they may grow up without fear of sudden ugliness attacks! Isn't it about time you did something about this?

JackD

The possibility of impeachment is, of course, a joke. As to administration officials refusing to behave badly, your faith is touching. If you folks don't see what's going on as an effort to establish the imperial presidency, then I suppose you think the emperor really does have clothes. Actually, the better recent wisecrack was "the clothes have no emperor!"

bob

Fairy,

I am sure that you jest.

JackB,

Exactly! But the King making didn't just start with Bush. Clinton contributed also. As a matter of fact, converting the President to a King has been going on for over 200 years. Remember the Alien and Sedition Acts of King Adams (our second "Pres")?

The Law Fairy

Awww, come on, Bob. You don't want a world full of pretty people?

Bob

No, fairy, I don't. I object to conformity of any kind. Especially when it comes to appearance. How would I be able to tell the good guys from the bad guys in the movies? Good guys are pretty, bad guys are ugly. It's better than white hats and black hats though.

But, on the other ahnd, how about a world full of smart people, eh, fairy?

Kimball Corson

Running a bit behind here; have been posting on Muhammad Cartoons I

Frederick Hamilton wrote:

"[About the need to clobber] the Islamic terrorists who want death, mayhem and destruction in our streets and a turn to some wonderful law......Sharia. Yes, agreed let the show [of a constituional crisis] begin. We Americans deserve a good one for a change. Not the anemic attempt to paint Alito a racist and a neanderthal. An honest to goodness fight over "spying on the enemy".

I respond:

Three points: (1) I am not the enemy although, like others, I might become one if I get hasseled enough; (2) It is America who is perpetrating "death, mayhem and destruction in [Arab] streets" not the reverse, as you suggest; (3) the real argument was not that Alito was a racist and a neanderthal, but that he will not protect the separation of powers doctrine, will let the executive branch run away with the ball and will generally defer to any party in a case in a position of power or authority over unaffiliated individuals and that this is bad for those individuals and the good health of our Bills of Rights.

Kimball Corson

Tell a World War II veteran of the Normandy landing we are at war and he'll look at you like you have been smoking something. We don't know what a real threat is beyond our ability to get people really mad at us and then react against their anger. Terrorism is basically the efforts of those with grievances, but without the resources to fight us, to frighten us and keep us running scared. Never in the history of the world has so little been done that scared so many for so long, as in our case. Are we brave or what? The problem is we have so much to loose all of our precious material excesses.

Kimball Corson

Frederick Hamilton wrote:

"Congress has many authorities as a co-equal branch of government . . "

I respond:

I haven't noticed Congress was a co-equal branch of government. I thought it was a tag along branch to the chief executive. Some say it hasn't the intelligence (literally) to be co-equal. Its initiatives would certainly suggest that, too. Others claim that it can’t deal with serious issues. And yet others, that it is comprised largely of lawyers, the effective cooperation of whom is like gathering cats into a hot bath. As for keeping a secret, it does about as well as it does with its unpartisan investigations. I suggest Congress has been asleep at the wheel too long to be co-equal. Perhaps it could be like a second court of review, changing orders that it doesn’t like.

Kimball Corson

I really like Bob's suggestion:

Is our "war on terrorism" just a marketing program of fear, like our "war on drugs" and our "war on crime?" We can have a war against anything we don't like, just with labels. Congress doesn't need to declare any war, it just gets to control the advertising budget, as we all run spooked, from the many wars we're in.

Kimball Corson

Frederick Hamilton writes:

"Problem is JackD they are not inclined to pull a Robert Kennedy and wiretap Dr. Martin Luther King, Jr. Nope. If General Hayden and the NSA were asked to do that, no doubt they would say no sir and in the next breath turn President Bush over to Congress for impeachment."

I disagree. If Hayden, (remember General White) and NSA were asked by the President to "pull a Robert Kennedy and wiretap Dr. Martin Luther King, Jr." all in the interests of national security, of course (‘You don’t understand the situation, because you don't know what I have just learned’), the quick and clear answer would be, "Yes, Sir. Right away, Sir." Generals give and take orders, and they take them especially from the Commander in Chief. They don’t parse legal distinctions. That is why presidents put generals in administrative positions.

Kimball Corson

If you doubt what I am saying about General Hayden, read his address to the National Press Club on "What American Intelligence and Especially NSA Have Been Doing to Defend the Nation" on January 23, 2006, which on its face purports to be a defense of NSA surveillance. It is an intellectual joke. He was likely told to go out on the rubber chicken circuit and wave the flag. He did and not very well either.


Kimball Corson

It is not Law Fairy who really wants more wars; it is Frederick Hamilton. Let's see how many Arab countries are there and will we need the draft again! Even Rusfeld issued a quick "no" when McCain suggested Iran might be our next target, if it doesn't do want we want.

Frederick Hamilton

Kimball,

It is interesting to see that an opposing view to "illegal domestic spying" such as mine gets so far under your skin. But really, let's just see how all this plays out. The co-equal branch of government that you haven't noticed is looking into the issue of warrantless spying on the enemy in a time of war (both the House and the Senate). I suspect (actually I doubt) the issue may end up in the SCOTUS. So the other co-equal branch of government might also get a say in all of this.

The World War II II Veteran of the Normandy D-Day invasion who believes today's wartime activities in Afghanistan, Iraq, special ops in who knows how many countries is indicative of somebody "smoking something" is a bit over the top. I doubt you could actually name a World War II Normandy Vet who would disparage the effort of our soldiers.

I have no desire for any more wars, but I would not put the war on terror (actually I kinda like the GWOT accronym) in the same catagory as the "war on drugs" or the "war on crime". Those terms denigrate soldiers ingaged in a real war.

This attempt to make it seem that we in America and the west are simply paranoid about al Qaeda is a little silly. Lets see: WTC, 9/11 (WTC II), London, Madrid, Bali, USS Cole, et al. Yeah, pretty silly stuff. Those people jumping to their deaths and those people on the Pennsylvania flight were just having a normal wonderful paranoid day. Please. Sometimes a little fear and paranoia is healthy don't you think?

You may disagree with General Hayden, but his address to the National Press Club was not an intellectual joke. I also like to think AG Alberto Gonzales, General Hayden, the professionals at NSA, the present executive branch and previous executive branch's have learned the lessons of history regarding unlawful spying on political opponents and innocent Americans. I guess I am too naive in that regard, but the truth always comes out so time will tell if Bush, Gonzales, Hayden, the eight Rep/Dem leaders, et al will have allowed the wholesale invasion of privacy and civil rights and Fourth Admendment violations.

And yes, many a Dem tried to paint Alito a racist and neanderthal. Actually Alito will be pretty darn vigilant regarding separation of powers as his court is one of those "co-equal" powers. There will always be debate as to whose ox is being gored among the "co-equals" but again in the end our constitution always seems to win.

I also hold to my belief that it is good to have these battles of the "co-equals" as it is indeed a great civics lesson for Americans who give too little thought to our constitution and our way of governing. It truly will be a "good show indeed."

Peace

Kimball Corson

Frederick, you raise some good points and I address them:

FH writes: “It is interesting to see that an opposing view to "illegal domestic spying" such as mine gets so far under your skin. But really, let's just see how all this plays out. The co-equal branch of government that you haven't noticed is looking into the issue of warrantless spying on the enemy in a time of war (both the House and the Senate). I suspect (actually I doubt) the issue may end up in the SCOTUS. So the other co-equal branch of government might also get a say in all of this.”

I respond:

What is under my skin is the extent to which our government is out of kilter and commensurately ineffective, to say nothing of dishonest, if not corrupt as to too many of its members, largely because of the faith-based, inept leadership we have and the untoward impact of all of it on us. It is the House Judiciary Committee that needs, to act, not the Senate equivalent. The SJC is still tied up in political knots over its investigation of the Valerie Paine/Wilson wife leak and that will too likely go nowhere. Assuming FISA and the Fourth Amendment were violated (as I believe they were, but that is another exchange) if impeachment articles were preferred by the House, can you imagine the Senate conducting a fair impeachment “trial” with Justice Roberts presiding?

FH writes: “The World War II II Veteran of the Normandy D-Day invasion who believes today's wartime activities in Afghanistan, Iraq, special ops in who knows how many countries is indicative of somebody "smoking something" is a bit over the top. I doubt you could actually name a World War II Normandy Vet who would disparage the effort of our soldiers.”

I respond:

Good points and I back off and bit and recast my comments. Better said, our situation should have been like our “war on drugs” or our “war on crime,” but we hugely overrated (recall the towers fell to everyone’s surprise, including Ben Laudin’s, because no one accurately anticipated the effect of the heat from the burning fuel and the inertia and weight of the upper floors on each tower) and now we have wars in two countries with our troops in harms way and likely to no good end. Also, too it is pretty hard to find a WW2 Normandy vet and he certainly would support our troops, as do I, but it is a truly lamentable state. Our effort to bring democracy to the Arab states now is going to fail, to the great ultimate loss of much and many to my mind.

FH: “I have no desire for any more wars, but I would not put the war on terror (actually I kinda like the GWOT acronym) in the same category as the "war on drugs" or the "war on crime". Those terms denigrate soldiers engaged in a real war.”

I respond:

See my comments above on most. I do believe that your implicit, if not explicit attitudes toward Arabs and Islam are a big part of the problem and they help justify our foolish efforts in Arab lands.

FH: “This attempt to make it seem that we in America and the west are simply paranoid about al Qaeda is a little silly. Lets see: WTC, 9/11 (WTC II), London, Madrid, Bali, USS Cole, et al. Yeah, pretty silly stuff. Those people jumping to their deaths and those people on the Pennsylvania flight were just having a normal wonderful paranoid day. Please. Sometimes a little fear and paranoia is healthy don't you think?”

I respond:

The WTC could be classified as a mere criminal act. WTC 9/11 was an accident as far as the damage was concerned, USS Cole was not even sunk and the other attacks were not against us. Considering we occupy two Arab countries and are at war in them, these problems are minor by intent and comparison, compared to the messes we are making in those Arab lands. Caution is sensible, but we over react.

FH: “You may disagree with General Hayden, but his address to the National Press Club was not an intellectual joke.”

I respond:

We just disagree here. I thought it was very poor and hardly more than a paranoid inducing wave of the flag.

FH: “I also like to think AG Alberto Gonzales, General Hayden, the professionals at NSA, the present executive branch and previous executive branch's have learned the lessons of history regarding unlawful spying on political opponents and innocent Americans. I guess I am too naive in that regard, but the truth always comes out so time will tell if Bush, Gonzales, Hayden, the eight Rep/Dem leaders, et al will have allowed the wholesale invasion of privacy and civil rights and Fourth Amendment violations.”

I respond:

I don’t think too many in Washington are behaving professionally and so I too doubt that any good lessons have been learned. I am more skeptical. The Republican political muscle in both houses of Congress will assure that there will be no serious consequences for anyone in regard to the Administration’s violations of the law. ‘Might makes right,’ if you will.

FH: “And yes, many a Dem tried to paint Alito a racist and Neanderthal. Actually Alito will be pretty darn vigilant regarding separation of powers as his court is one of those "co-equal" powers. There will always be debate as to whose ox is being gored among the "co-equals" but again in the end our constitution always seems to win.”

I respond:

Yes, some silly Dems did do that, but the better arguments were on the points I raised here. Alito is certainly no Neanderthal and I have no real reason to believe he is currently a racist. Too, there is always the possibility he has had a change of heart (likely at his wife’s aegis) and will be an excellent Justice, being a true swing vote like O’Connor, instead of a block with Roberts. We will see, but I am skeptical. And you are right that in the long haul – we should live so long – the Constitution does seem to come out on top.

FH: “I also hold to my belief that it is good to have these battles of the "co-equals" as it is indeed a great civics lesson for Americans who give too little thought to our constitution and our way of governing. It truly will be a ‘good show indeed.’”

I respond:

I too would like a good show and for the same reasons as you. I just don’t think Congress is co-equal or that given Republican muscle in both houses we are going to get it. All will likely die in committee like the Paine leak investigation

Peace would be nice and we should work foir it.

Kimball Corson

I just came across what I accurately paraphrase below:

'CHICAGO — Surveillance cameras — already aimed at government buildings, train platforms and intersections here — might soon be required at corner taverns and swanky nightclubs in Chicago if Mayor Daley has his way.'

If we are not now fairly concerned about the Administration's survelliance of us, the news bulletin above should give us pause in that regard. We are all being watched and could be listened to as well.
This is beginning to look more and more like Orwell's 1984.

Bob

But all those cameras and microphones and phone taps and email sniffers are all there just to protect us in our "war on terror" and our "war on crime" and our "war on drugs" and our "war on poverty" and any other fear-based threat we can think of.

It's all for our own good. Mwaahhahahahahahah!

Frederick Hamilton

Kimball,

1984 sadly has been with us for some time. I share your concern for privacy and agree that big brother (U.S. or City of Chicago or State of Illinois, whatever) most likely would invade our privacy if they could get away with it.

The surveillance cameras all over New York City or any major city are intrusive. They will in all likelihood help the police apprehend the criminal but cerainly won't prevent the crime. So, you may get shot, and if you live, you can take comfor that the surveillance camera allowed the authorities to find the perp. Does that justify the cameras? Darn good question. What about cameras at intersections catching me running a red light? How about cameras on the highway coordinating photos of cars with speed sensing technology and ticketing you for speeding? Even Orwell couldn't have envisioned the technology we have today to be used for good and not so good.

Those claiming no crime no foul assert that all these cameras are in "public spaces" and once you venture into these public spaces you have forfeited any right to privacy. I personally don't agree with that argument.

I, however, can't equate big brother and all the bad that brings to mind with trying to capture al Qaeda terrorists though. Again, it means that during this time of GWOT (a real problem, please see Prof/Judge Richard A. Posner's piece in yesterdays WSJ) the constitution indeed is not a suicide pact and the intercepts of "enemy" activity are fair game. Judge Posner would like to tweak the FISA law to allow for it with a special review board, but interestingly, no one is calling for the NSA anti-terrorist surveilence to be abandoned. The need for it is that strong. Ergo, as I have always maintained, assuming the program is narrowly directed (granted possibly a big assumption, but clearly provable) at al Qaeda and terrorists (in or out of the U.S., American citizen or not) it will be judged constitutional. To do otherwise, if against the enemy, would create a political nightmare and a confrontation that only the fringe looney left of America wants.

The problem you just articulated is quite different. Catching and kicking the crap out of the enemy in a time of war is one thing. Invasion of privacy not part of a war is something else indeed. Totally objectionable to me for sure. I am a freedom and liberty person. Democracy seems to ensure freedom and liberty better than other forms of government, but still freedom and liberty is the point. Not necessarily elections.

The problem with Chicago and the Daley clan is that together (and they have been together for a very long tinme) they are not known for their freedom and liberty bona fides.

Which brings us to the main stream media, their antipathy for Bush, and their portrayal of the NSA program as "domestic spying". That was the real disservice in all of this in my opinion. If you want to discuss the NSA program, lets discuss it. Let's not try and turn it into wholesale spying by big brother. The whole episode is being blown out of all proportion. Fortunately the American people for the most part understand that and woe be to Democrats if they remain the anti-war zealots that don't want to take the fight to the terrorists. That dog won't hunt very well in America except for very liberal outposts (SF, NYC, Berkley, et al).

Kimball, I'd like to ask your opinion of this. Let's say there is a terrorist attack in Chicago on the El and six trains are blown up and 300 people die and another 900 are wounded. And at the time of the explosions, Dick Durbin is arguing on the floor of the Senate about the horrors of "illegal spying" on al Qaeda and that to allow that is tantamount to giving up our freedom and liberty. How do you think that will play in Peoria? I rest my case on NSA. On the other invasions of my privacy I side with you. Peace.

Kimball Corson

Actually, Frederick, we do not disagree by much. I can accept your first three paragraphs, including your hesitations, without a problem, and indeed much else in your letter. I guess the real problem is I do not trust this faith-based Administration, which loves its secrecy (much is made so unnecessarily), can retaliate meanly against its enemies (e.g, Paine/Wilson affair), is really not very honest (es.g., when White house learned around dikes breaking in New Orleans, what Abramoff is telling us, and Delay) and would act on directives from on high contrary to law, while eschewing any oversight (e.g., Paine/Wilson and the FISA problem). To have so much surveillance equipment aimed at us, when this Administration is so unpopular and bull-headed in its ways and about its goals and also ruthless in its politics is what troubles me. The potential for serious abuse is horrendous. That said, we have indeed foolishly stuck ourselves into two big military messes – to bring democracy to the Arab world, which wants theocratic rule, after the Sunnis and the Shiites get a chance, in at least Iraq, to tear each others lungs out over past differences reaching back to who should have been the caliph when.

That FISA applies and controls is beyond doubt in my mind. Both its language and legislative history make it very clear that Congress intended to circumscribe any claim of inherent authority, any powers arguably implied by or ancillary to Article III or any less specific statutory authorization, even, and most particularly in time of war. That Congress, with all the Republic muscle at hand, has not amended FISA is very telling as well, for the legislative history of the Act reflects the possibility of amendment when necessary. Indeed, FISA was amended to strengthen its provisions and aid in the War on Terrorism after AUMF was enacted and Congress made its intent very clear that FISA was to apply and control during wartime as the implementation of the Fourth Amendment during such troubled times. In such circumstances, AUMF may not be fairly read to authorize such surveillance against non-combatant American citizens very substantially out of the war zone or area of on-going combat. I think the Administration really does not hold the cards it needs here.

What the Administration should have done is have sought review of its proposed surveillance plan before the FIS court and then if necessary appellate review before the USFIS Court of Review. If it failed before those courts or alternatively, it could have sought narrow amendment of FISA by Congress. What it did instead was conceal its activities behind a cloak of secrecy and moved forward with its program, without any oversight by anyone and hiding it from the American public, which fell within the program’s purview. Two possibilities arise in regard to what the Administration should have done. The first is that either the lower or appellate FISA court would have allowed the surveillance with periodic oversight and review by the lower FISA court, or Congress would have amended FISA to allow such surveillance with oversight, probably along the lines of what my past teacher, Posner, is now suggesting.

That is how the Administration should have proceeded. Instead, it went forward under its own lights, did what it wanted to and broke the law, probably recognizing that Bush and Cheney could do so without risk of impeachment proceedings by or before the Republican-controlled Congress. It is not wrong for the American news media to point these things out and challenge Bush and Cheney on them. That both are, for many reasons, not particularly likeable and have developed a history by now does not help their cause. I believe the US news media has done us a service by bring all of this to light. Further, who knows what else is now going on in secret which affects our interests?

Having committed ourselves, based on clear misinformation from the Administration, to this war in Iraq, we do need to support our troops and do what we reasonably can in the regards at hand. However, I think we also need to realize our effort and goals in Iraq are going to fail at least for the foreseeable future, and consider how best to extricate ourselves from this mess with the minimal loss of life and limb to American soldiers. We should at least address Bin Laudin’s recent peace initiative and determine, within its framework, what is possible and what is not. Foolishly, we just plow ahead with the bodies of American soldiers. I am not really anti-war, but I am against this one. I think the way to combat the reactionary elements of Islam is to bombard reactionary Arab countries with radio and TV news programs, news analysis, and other entertaining and informative programming in Arabic that makes it implicitly clear how foolish and stupid those reactionary elements are, without directly saying so. Such Arabs are not stupid, just ignorant and ill-informed. The approach I suggest is cheap and would in time I believe be very effective. Our culture is addictive to the rest of the world.

FH writes: “Kimball, I'd like to ask your opinion of this. Let's say there is a terrorist attack in Chicago on the El and six trains are blown up and 300 people die and another 900 are wounded. And at the time of the explosions, Dick Durbin is arguing on the floor of the Senate about the horrors of "illegal spying" on al Qaeda and that to allow that is tantamount to giving up our freedom and liberty. How do you think that will play in Peoria?”

I respond: Very badly of course. But that is not our current situation. The war is in their backyards, not really in ours. And I can say the things I do without wholly buying into Durbin’s thinking, too. Further, our reaction to a bombing of the El and six trains would clearly be, in the first instance, an emotional one and not therefore one on which we should base any action or reaction on our part. We would need to think the matter through first. Finally, our best thinking is not done in Peoria (or even Washington these days, I would add).

Frederick Hamilton

Professor Stone,

I remain unconvinced that "spying on the enemy" in a legally statutorily approved war could ever possibly be unconstitutional. Also it would be counter to what virtually all Americans would want their government to do. George Will today wrote an essay essentially saying what Professor/Judge Richard A. Posner wrote in the WSJ two days ago; to wit that though the NSA enterprise is questionable, Congress should pass legislation making it "legal".

Today also to counter Will (and also as it turns out Posner) Andrew McCarthy wrote this detailed analysis of why Will and Posner are wrong. His reasoning seems solid and persuasive. It is as follows:

February 16, 2006, 3:44 p.m.
Checked and Unbalanced
George Will’s diatribe against the NSA program is meritless.

As a reverent admirer of George Will, it pains me to say that his diatribe today against the National Security Agency's terrorist-surveillance program is an embarrassing magpie of hyperbole and error.

Will's premise is that the administration, in authorizing the program, has promulgated the "monarchical doctrine" that "whenever the nation is at war, the other two branches of government have a radically diminished pertinence to governance, and the president determines what that pertinence shall be." This is so outlandish as to defy measure. Neither the administration's position nor the NSA program have much of anything to do with governance in the domestic sphere — which, it should be observed, is the only sphere in which one of the branches Will refers to, the judiciary, ever has a role in governance.


A Foreign Affair
Will can suggest otherwise only by misrepresenting the program as "warrantless surveillance...targeting American citizens on American soil." In fact, the program targets al Qaeda, a foreign terrorist organization with which we are at war, and which is energetically working (it tells us unabashedly) toward a strike against our homeland which would dwarf the carnage of 9/11. The program targets, moreover, only international communications by this foreign enemy, some of which cross U.S. borders. Of course, it is settled law that warrantless searches at the border are an entirely legitimate exercise of executive power, even in peacetime. Anomalously, Will finds warrantless searches in wartime of possible enemy commands to launch a strike that could kill countless thousands of Americans to be an exercise in despotism.

The administration's position, and the program, is pertinent to governance in the field of foreign relations. In that field, whether Will likes it or not, the president has primacy — primacy of the same sort the Supreme Court enjoys in interpreting the Constitution and Congress in funding governmental operations. The president does not enjoy such primacy because of some Bush administration ipse dixit. It has been the law ever since we began living under the Constitution.

Will is offended by what he calls "the administration's argument that because the president is commander in chief, he is the 'sole organ for the nation in foreign affairs[,]'" a contention Will preposterously calls a "non sequitur [that] is refuted by the Constitution's plain language." Perhaps Will — who evidently has no problem relying on Supreme Court precedent when he thinks it advances his position — should take a look at what that tribunal has said in this regard.


What The Court Does Say
He'll find that what he is quoting is not "the administration's argument." Rather, it is the Supreme Court's interpretation of the very Constitution to which Will alludes. Specifically, the Court divined in United States v. Curtiss-Wright Export (1936) the "delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of foreign relations." (Emphasis added.) The Court reaffirmed the point a half-century later in Navy v. Egan (1988), observing that it had long "recognized the generally accepted view that foreign policy was the province and responsibility of the Executive" (internal quotation omitted).

The Court has not rested this view solely on the president's status as commander-in-chief but on all the powers vested in him under Article II. This includes all of the executive power itself which, as the Framers well understood, needed a far wider berth in the international arena if the Nation was to be secure. Will, however, curiously contends that this concept cannot be squared with the Constitution the framers bequeathed us which, according to Will, "empowers Congress to ratify treaties, declare war, fund and regulate military forces, and make laws 'necessary and proper' for the execution of all presidential powers." (Emphasis in original.)


And what the Constitution Says
But he's wrong. For example, the Constitution does not empower Congress to ratify treaties. The president ratifies treaties (as well as makes them); "Congress" has no role at all — the Senate must consent to them, but such consent does not bind the president to put treaties into effect. The power to declare war has never been a power to make, authorize, or initiate war. Indeed, as demonstrated in The Powers of War and Peace by Professor John Yoo, formerly of the Justice Department's Office of Legal Counsel, the Framers altered a draft of the Constitution that would have empowered Congress to "make" war, settling on "declare," a term of art which, at the time of the founding, merely meant the provision of formal notice to the world (including the enemy) of a state of total war (as opposed to some lesser degree of hostilities), which triggered various rights for belligerents under international law. It is no accident either that the U.S., despite having participated in numerous wars, has formally declared war only five times in its history (and not since 1941), or that our British forebears frequently fought wars with no formal declaration whatsoever.

Furthermore, the "necessary and proper" clause sheds exactly no light on the current controversy. It is freely conceded that Congress has the authority to make laws necessary and proper to vindicate the powers enumerated in the Constitution. That hardly means, however, that the president is impotent to take measures consistent with his own inherent authority under Article II — and the president, it bears noting, is the only governmental officer bound by our fundamental law "to preserve, protect and defend the Constitution of the United States" (Article II, Section 1). Nor does it mean the president is bound to honor congressional enactments (such as the Foreign Intelligence Surveillance Act (FISA)) to the extent their operation would constrain his inherent authority — a position supported historically by administrations of both parties because of the elementary proposition that a statute cannot trump the Constitution.

It is simply a fact that there is a chasm between presidential authority in the domestic and foreign realms. In domestic affairs, we live in a single political community, the government has a monopoly on the use of force, and courts are imposed as a bulwark to protect Americans from executive and legislative overreaching. There, Congress has broad powers to regulate executive action. Not so in the international arena. There, we confront unpredictable contingencies including enemies claiming the power to use massive lethal force. The circumstances are not hospitable to the same kind of antecedent law-making that is practical in domestic affairs. That is why the framers provided for an energetic executive, not national security by committee.

It is also, no doubt, why, in United States v. Brown (1973), the Fifth Circuit U.S. Court of Appeals, in upholding the president's inherent Article II authority to conduct warrantless wiretaps for foreign intelligence gathering, asserted that "[r]estrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere." It is why, when FISA became law in 1978, President Carter's attorney general, Griffin Bell, stressed that FISA did not (and, indeed, could not) vitiate the president's inherent authority under Article II. It is why, in 1994, President Clinton's deputy attorney general, Jamie Gorelick, testified that the president maintained his inherent Article II authority to order warrantless searches even when FISA was expanded to regulate such searches. And it is why, even after a quarter-century of FISA, the highest and most specialized court ever to review that statute, the Foreign Intelligence Court of Review, observed in 2002: "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information... We take for granted that the President does have that authority." (Emphasis added.)


A Spurious Citation
Will's apparent response to the weight of this authority — I must say "apparent" because he doesn't deign to discuss any of it — is to misstate the resolution of the 1952 steel seizure case. There, he claims, the Supreme Court "held that presidential authority is weakest when it clashes with Congress." But that was not the holding of the Court. It was the view of Justice Robert Jackson in a concurring opinion. Even Justice Jackson, furthermore, did not claim that presidential power disappears when it is at loggerheads with Congress's will. Instead, the outcome of the historic and inevitable competition between the political branches depends on the nature of the powers implicated as they relate to the dispute at issue.

The steel seizure case, though it occurred against the backdrop of the Korean War, involved presidential interference in a domestic collective bargaining dispute. To the contrary, the NSA program involves foreign intelligence collection, a matter as to which we needn't speculate the extent of presidential authority — as we have seen, that authority is plenary. Little wonder then, as pointed out in a recent letter to the Senate Judiciary Committee by attorney Bryan Cunningham (a former official in the Clinton and Bush administrations), that it was the very same Justice Jackson who wrote for the Court only two years earlier, in Johnson v. Eisentrager (1950), that the president was "exclusively responsible" for the "conduct of diplomatic and foreign affairs."


A Further Misunderstanding
Will's attack on the administration's secondary position, viz., that its NSA program is authorized to operate outside FISA's strictures by Congress's post-9/11 Authorization for the Use of Military Force (AUMF), is specious. He begins, yet again, by either misunderstanding or misstating the argument.

The administration is not, as Will avers, "incoherently" claiming that it thinks Congress tacitly blessed warrantless monitoring even though it really believes Congress would have declined such authority if asked specifically. As Attorney General Alberto Gonzales explained in answers to questions posed by Senate Judiciary Committee Chairman Arlen Specter, the administration believed it could not get FISA amended to approve the NSA program without compromising operational details of the program, which would inexorably have alerted the enemy to our capabilities. Thus it went ahead, not because it thought Congress unreceptive but because it believed — quite plausibly — that it already had valid legal grounds and pursuing additional, more specific authority would have undermined wartime effectiveness.

Will then grouses: "the argument that the AUMF contained a completely unexpressed congressional intent to empower the president to disregard the FISA regime is risible coming from this administration. It famously opposes those who discover unstated meanings in the Constitution's text and do not strictly construe the language of statutes." But it is Will's contention that is risible. Let's leave aside that the president's authority over foreign intelligence collection is so firmly entrenched as to require little discussion. In point of fact, what this administration "famously" did only two years ago is argue to the Supreme Court that the AUMF tacitly authorized the detention without trial of American-citizen enemy combatants. The Supreme Court accepted that argument in Hamdi v. Rumsfeld (2004), another case Will neglects to mention. The Court accepted the argument, it bears underscoring, based on the very rationale that applies perfectly here: the AUMF provides authority for all the fundamental aspects of war-waging. Those include the detention of enemy combatants, and they include — just as basically — the penetration of enemy communications.

Finally, as George Will knows as well as anyone, the president is no monarch. While his polemic is counterfactually entitled "No Checks, Many Imbalances," the Congress has the ultimate and complete check here. It can, right this minute, vote to cut off appropriations for the program. Naturally, it won't do that because it recognizes that the program is necessary and that the American people are not offended by the manner in which it has been implemented.

And for all Will's bombast about the Constitution's plain language and structure, it is difficult to imagine anything that would have been more startling to those who crafted our fundamental law than the suggestion that the president of the United States needs a federal judge's permission to intercept the international communications of a wartime enemy that seeks, above all else, to mount a massive attack against the homeland.

— Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

Kimball Corson

McCarthy’s strained analysis is a largely an exercise in political rhetoric and expediency which ignores or misconstrues too much law

He writes: “The program targets al Qaeda, a foreign terrorist organization with which we are at war, and which is energetically working (it tells us unabashedly) toward a strike against our homeland which would dwarf the carnage of 9/11. The program targets, moreover, only international communications by this foreign enemy, some of which cross U.S. borders. Of course, it is settled law that warrantless searches at the border are an entirely legitimate exercise of executive power, even in peacetime.”

I respond: Fear mongering and false targeting rhetoric aside, the correct question is who is subject to the surveillance and arguably where. The targeted group is those whose communications are intercepted and reviewed. That is, law abiding American citizens. The Fourth Amendment and FISA certainly cover such surveillance of American citizens and the provisions of FISA must be complied with. The argument that surveillance of foreign calls to and from Americans in their homes is equivalent to a person’s search at the boarder is not only frivolous, but absurd. The purposes are different. People are searched at the boarder for illegal imports.

McCarthy also writes: “The administration's position, and the program, is pertinent to governance in the field of foreign relations. In that field, . . . the president has primacy — primacy of the same sort the Supreme Court enjoys in interpreting the Constitution and Congress in funding governmental operations.

I respond: This argument is comparably frivolous. Aunt Millie calling her niece in Paris to wish her happy birthday is NOT a matter “pertinent to governance in the field of foreign relations,” nor a concern of the President’s, nor is the communication subject to warrantless, unchecked or unsupervised surveillance. FISA makes that clear.

McCarthy writes: “ . . . the Constitution does not empower Congress to ratify treaties. The president ratifies treaties (as well as makes them); "Congress" has no role at all — the Senate must consent to them, but such consent does not bind the president to put treaties into effect. The power to declare war has never been a power to make, authorize, or initiate war.

I respond: So what? Another set of irrelevancies strewn in our path does not make or support McCarthy’s basic argument either.

McCarthy writes: “ . . . Furthermore, the "necessary and proper" clause sheds exactly no light on the current controversy. It is freely conceded that Congress has the authority to make laws necessary and proper to vindicate the powers enumerated in the Constitution.

I respond: Not quite correct. The necessary and proper clause means Congress does have the power to enact FISA for wartime to vindicate and define the powers granted to American citizens under the Fourth Amendment.

McCarthy writes: “That hardly means, however, that the president is impotent to take measures consistent with his own inherent authority under Article II — and the president, it bears noting, is the only governmental officer bound by our fundamental law "to preserve, protect and defend the Constitution of the United States" (Article II, Section 1). Nor does it mean the president is bound to honor congressional enactments (such as the Foreign Intelligence Surveillance Act (FISA)) to the extent their operation would constrain his inherent authority — a position supported historically by administrations of both parties because of the elementary proposition that a statute cannot trump the Constitution.

I respond: The President has no inherent authority to violate the Fourth Amendment as to American citizens on American soil. No general Constitutional provision gives him that power. Also, a general statutory or constitutional provision always yields to a more specific one of its own kind. Even when Congress, by enacting FISA, gives him arguably greater leeway in time of war and secrecy to engage in surveillance under the Fourth Amendment, that proposition still remains true. Further, the President, as McCarthy points out, is sworn to preserve and protect the Constitution – including the Fourth Amendment -- and not to violate it.

McCarthy writes: “It is simply a fact that there is a chasm between presidential authority in the domestic and foreign realms. In domestic affairs, . . . Congress has broad powers to regulate executive action. Not so in the international arena. . . . In United States v. Brown (1973), the Fifth Circuit U.S. Court of Appeals, [. . .upheld] the president's inherent Article II authority to conduct warrantless wiretaps for foreign intelligence gathering, asserted that "[r]estrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere."

I respond: Let’s get the on-going semantical games out of the way. The President’s unlawful surveillance program does not, as required, by the Fifth Circuit’s Brown opinion target a enemy foreign power or its agents, who can have no Four Amendment rights in the circumstances. The program in fact targets a large group of American citizens and residents (those making and receiving foreign calls) and by sifting through their communications hopes to find some communications that are arguably unprotected under the Fourth Amendment according to Brown. This is certainly a domestic effort, done for domestic security, done from within the US, and done in regard to American citizens using their telephones on American soil and Congress has the authority to enact FISA on these grounds as well. It is foolishness to argue American citizens are not targeted. They are, in the hope of finding something. That is the problem. If they were not targeted, they would not be the objects of surveillance. This is semantical foolishness that belongs on Madison Avenue to sell sell stuff.

McCarthy writes: “. . . When FISA became law in 1978, President Carter's attorney general, Griffin Bell, stressed that FISA did not (and, indeed, could not) vitiate the president's inherent authority under Article II. It is why, in 1994, President Clinton's deputy attorney general, Jamie Gorelick, testified that the president maintained his inherent Article II authority to order warrantless searches even when FISA was expanded to regulate such searches. And it is why, even after a quarter-century of FISA, the highest and most specialized court ever to review that statute, the Foreign Intelligence Court of Review, observed in 2002: "[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information... We take for granted that the President does have that authority." (Emphasis added.)”

I respond: Non citizens who are specifically foreign agents or combatants of powers we are at war with have no Fourth Amendment rights and the President’s inherent authority under Art. II to conduct surveillance on them is not subject to challenge. The situation changes radically when American citizens are subjected to surveillance because the Fourth Amendment does squarely and strongly protect them, especially as implimented for war time by FISA. The President’s general “inherent powers” do not trump the more specific Constitutional right of citizens to be free of unreasonable searches and not have warrants requiring probable cause for those searches.

McCarthy’s writes: . . . the administration's secondary position . . .that its NSA program is authorized to operate outside FISA's strictures by Congress's post-9/11 Authorization for the Use of Military Force (AUMF). . . . In point of fact, what this administration "famously" did only two years ago is argue to the Supreme Court that the AUMF tacitly authorized the detention without trial of American-citizen enemy combatants. The Supreme Court accepted that argument in Hamdi v. Rumsfeld (2004) . . . based on the very rationale that applies perfectly here: the AUMF provides authority for all the fundamental aspects of war-waging. Those include the detention of enemy combatants, and they include — just as basically — the penetration of enemy communications.

I respond: Nothing in AUMF suggests that the Fourth Amendment rights of law abiding American citizens are to be set aside when we are at war or when that might be expedient. Moreover, as McCarthy points out, a congressional statute, here AUMF, cannot trump a Constitutional provision, the Fourth Amendment. Also, FISA has been amended since AUMF was enacted and nothing supporting McCarthy’s contention that AUMF allows NSA to operate outside of FISA’s restraint can be found in either statute, originally or as amended, nor in any legislative history of either Act. All indications are really to the contrary. Hamdi v. Rumsfeld (2004) does not really help the Administration’s position either because all it really suggests here is that when American citizens become enemy foreign agents or operatives, like other such enemy agents and operatives, they do not really have constitutional protections.

McCarthy writes: “ . . . it is difficult to imagine anything that would have been more startling to those who crafted our fundamental law than the suggestion that the president of the United States needs a federal judge's permission to intercept the international communications of a wartime enemy that seeks, above all else, to mount a massive attack against the homeland.

I respond: First, let’s drop the dopey rhetoric. Our enemy could not mount a “massive attack: against us even if they wanted to. They do not have the resources. Also, the words “massive attack” could fairly imply a Normandy-like invasion. This further points out the foolishness of the statement. Also, no one is seriously talking here about the Administration’s limited act of “intercepting the international communications of a wartime enemy” without more. Law abiding American citizens are targeted for and actually subject to surveillance without warrants or any oversight or protections and in violation of their Fourth Amendment rights. McCarthy’s position is largely rhetorical sophistry.

What we are really discussing here is the Administration’s unlawful eavesdropping on a large group of American citizens and residents (those making and receiving foreign calls), without warrants, and then sifting through their communications in the hope of finding some specific communication that renders its participants arguably unprotected by the Fourth Amendment. This is certainly a domestic effort, done for domestic security, done from within the US, and done in regard to American citizens using their telephones on American soil and so it is the business of Congress under the Fourth Amendment and the "necessary and proper" clause. There is no walking around FISA and the Fourth Amendment on this one. McCarthy’s legal analysis is strained, inept, political and riddled with inflammatory and fear mongering rhetoric.

Frederick Hamilton

Kimball,

Your critiques of McCarthy's points are too vague and don't specifically counter his points. As one example: McCarthy states the the import of the Hamdi decision was that the Supreme Court determined that the detention of enemy combatans (even when they were American citizens) was incident to the waging of war and appropriate and power which the President has, therefore McCarthy concludes that intercepting communicatins of the enemy is also clearly incident to waging war. He is right. You are wrong.

Here are painful facts that you may not like but which will be perpetuated as long as the fight against the terrorists continues: 1) The intercepts of international communications of "reasonably suspected" terrorists into and out of the United States will continue. They will continue either with or without Congress teaking FISA to make them fit nicely within FISA. 2) Congress will not vote to cut off appropriations for either the GWOT or the NSA effort to intercept international enemy communications (whether that involves U.S. citizens or not). 3) The U.S. Supreme Court will not declare the NSA program as presently constructed to be unconsitutional and if it gets there will allow the President the power he already consitutionally has (FISA or no FISA, here McCarthy is correct that constitution trumps FISA statute as it relates to powers incident to waging war....parenthetically a legislatively statutorily approved war...AUMF)

You keep trying to claim the the Fourth Amendment of the constitution is being violated. It isn't. "reasonable searches and seizures". There are many non-court approved warrantless reasonable searches already being done all over the USA to American citizens. To try and argue that to search a communication of a international call a reasonable person (read: professional analyst at NSA) suspects to be a terrotist we are at war with violates the Fourth Amendment thank God (yes, faith based) only a fringe weird thinking federal jurist would agree with.

What most fascinates me is that I think there is a good chance that this kerfuffle about intercepting international terrorist calls against al Qaeda (and their cohorts) may indeed, if it does get to the Supreme Court, lead to the FISA statute itself being declared unconstitutional. Legal opinions from the original AG (Bell) through Clinton (Gorelick) and of course the present Department of Justice all articulate that FISA does not and cannot infringe on executive powers enumerated in the constitution. FISA to my knowlege has never been adjudicated by the Supreme Court and there it is good chance it won't withstand constitutional scrutiny. After all is said and done, FISA is congress telling the executive how to handle "Foreign Intelligence Surveillance". Could get dicey.

Just to drive home the point again. Like it or not Kimball the intercepts of internatinal terrorist calls will continue, as they should.

Kimball J. Corson

FH writes: “Your critiques of McCarthy's points are too vague and don't specifically counter his points. As one example: McCarthy states the the import of the Hamdi decision was that the Supreme Court determined that the detention of enemy combatants (even when they were American citizens) was incident to the waging of war and appropriate and power which the President has, therefore McCarthy concludes that intercepting communications of the enemy is also clearly incident to waging war. He is right. You are wrong.”

I respond: We disagree on all points here. Please reread my last post. I AGREE with your and McCarthy’s read of Hamdi. The problem is that the communications of law abiding, non-combatant, non-terrorist American citizens are also being intercepted and reviewed. They do not fall under Hamdi. That is the problem you persist in ignoring and the crux of the difficulty.

FH writes: “Here are painful facts that you may not like but which will be perpetuated as long as the fight against the terrorists continues: 1) The intercepts of international communications of "reasonably suspected" terrorists into and out of the United States will continue.”

I respond: Our government can intercept all the communications of reasonably suspected terrorists it wants. It should do that. However, it may not lawfully intercept and read the communications of law abiding American citizens who, by definition, are not reasonably suspected terrorists. That is the problem you persistently ignore and the whole difficulty.

FH writes: “They will continue either with or without Congress amending FISA to make them fit nicely within FISA.”

I respond: All you are saying here is that the Administration will continue on its lawless path in violation of law abiding citizens’ Fourth Amendment rights. Congress shows no particular inclination just now to amend FISA. Further as implementing legislation for wartime of the Fourth Amendment, Congress is limited in what it can do to sanitize the Administrations program by amendment. We deal here with a constitutional mandate, not a perceived need for expediency.

FH: “Congress will not vote to cut off appropriations for either the GWOT or the NSA effort to intercept international enemy communications (whether that involves U.S. citizens or not)”

I respond: No one can sensibly suggest that appropriations for the GWOT will or should be cut off. That is foolish. Further, the NSA interception and review of the communications of non-terrorist, law abiding American citizens is not an activity separately funded for excision, nor is a Republican-controlled, patsy branch of government, Congress, likely to act. That so. FISA stands and the problem remains.

FH writes: “3) The U.S. Supreme Court will not declare the NSA program as presently constructed to be unconstitutional and if it gets there will allow the President the power he already constitutionally has (FISA or no FISA, here McCarthy is correct that constitution trumps FISA statute as it relates to powers incident to waging war....parenthetically a legislatively statutorily approved war...AUMF)”

I respond: You ignore what I write. The Fourth Amendment trumps AUMF and any vague inherent powers. FISA is implementing legislation for the Fourth Amendment to apply during wartime. AUMF cannot blithely hop over all that, as you wish. The Supreme Court is not likely to get the matter because the Administration ignores FISA and the Fourth Amendment and will not likely press the whistle-blower in court because he or she can raise illegality as a defense. Besides, even if the matter goes that fair, a Court packed with cronies is not the last world on constitutionality, any more than scholarly acceptance of the Bush decision of that Court is. As you say, the Constitution tends to prevail in the long run. In the meantime, we deal with Republican political muscle and lawlessness.

FH: “You keep trying to claim the Fourth Amendment of the constitution is being violated. It isn't. "reasonable searches and seizures". There are many non-court approved warrantless reasonable searches already being done all over the USA to American citizens. To try and argue that to search a communication of a international call a reasonable person (read: professional analyst at NSA) suspected to be a terrorist we are at war with violates the Fourth Amendment thank God (yes, faith based) only a fringe weird thinking federal jurist would agree with.”

I respond: You have problems again. It is not reasonable to search the communications of Aunt Millie (and other law-abiding American citizens) to learn whether she is a terrorist and the search already conducted is legal. There is NO probable cause or reasonable suspicion to believe Aunt Millie (and other law-abiding American citizens) is doing anything wrong in wishing happy birthday to a relative. AUNT MILLIE IS NOT REASONABLY SUSPECTED TO BE A TERRORIST. You keep changing the subject to terrorists, when almost all of the communications intercepted and reviewed are of non-terrorist, law-abiding American citizens. You don’t address this problem. That there might be or have been other violations of the Fourth Amendment does not justify these.

FH writes: “What most fascinates me is that I think there is a good chance that this kerfuffle about intercepting international terrorist calls against al Qaeda (and their cohorts) may indeed, if it does get to the Supreme Court, lead to the FISA statute itself being declared unconstitutional. Legal opinions from the original AG (Bell) through Clinton (Gorelick) and of course the present Department of Justice all articulate that FISA does not and cannot infringe on executive powers enumerated in the constitution. FISA to my knowledge has never been adjudicated by the Supreme Court and there it is good chance it won't withstand constitutional scrutiny. After all is said and done, FISA is congress telling the executive how to handle "Foreign Intelligence Surveillance". Could get dicey.”

I respond: AGAIN, we are not intercepting and reviewing only terrorists’ calls, but much more those of non-terrorist, non-combatant, law-abiding American citizens, without probable cause, reasonable suspicion, or any oversight whatsoever and doing so secretly behind the backs of all Americans. AGAIN, FISA is implementing legislation for the Fourth Amendment during wartime. If the Administration wants to ignore it, then it has an even tougher row to hoe under the Fourth Amendment. The same is true if FISA is somehow struck down. FISA helps not hurts the Administrations efforts to intercept terrorists’ communications. The specific requirements of the Fourth Amendment trump any vague inherent powers the Administration claims to have in this context. Again, it is the Fourth Amendment telling the Executive Branch what it can and cannot do regarding surveillance of non-terrorist, non-combatant, law-abiding American citizens, not Congress, which with FISA is actually giving the President a leg up. You do not understand this.

FH: “Just to drive home the point again. Like it or not Kimball the intercepts of international terrorist calls will continue, as they should.”

I respond: All right. Inasmuch as you ignore my comments, I’ll play along here: will the secret interception of calls between non-terrorist, non-combatant, law-abiding American citizens, without probable cause, reasonable suspicion, or any oversight whatsoever continue? That is the question. Not whether terrorists’ calls will be intercepted as you persist in arguing. If so, it is because of Republican political muscle that moves in the vein of “might makes right” which is a state of fundamental lawlessness. We seriously disagree. You want what is expedient. I want the law to apply and adjust if it can as necessary.

Kimball J. Corson

Apropos of the “Republican muscle” problem I identify, a major newspaper reports that leaders of the House Intelligence Committee agreed to open an inquiry regarding the Administration's domestic surveillance program. However, a dispute then broke out among committee Republicans over the scope of the inquiry. Heather A. Wilson, a New Mexico Republican and committee member, who called for the investigation, said the review would be broad and all encompassing. However, Michigan Representative Peter Hoekstra, who heads the committee, said the inquiry would be very limited in scope, focusing only on whether federal surveillance laws needed to be changed and not on the eavesdropping program itself. Meanwhile, the Senate Intelligence Committee put off a vote to conduct its own investigation. Senate Democrats accused concerned Republicans of bowing to political pressure.

It seems Republicans leaders do not want to get near the main issue.

Kimball J. Corson

Why, Frederick, if the NSA surveillence program is legal as you say, are leadership Republicans so afraid to get near it?

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