Global Big Brother and the Snowden Hollywood Chase

16 Jul


The post below is a major revision of another piece on the Snowden Affair that was published in AJE. I have dwelled on the pursuit of Snowden because it raises such vital issues of principle, but also because so much of the public discourse has proceeded on a mistaken understanding of the applicable international law. Beyond the legal guidelines on extradition and asylum that are applicable, there are considerations of world order: protecting dissent and pluralism in a global setting in which the principal political actors are sovereign states that increasingly rely on secrecy and security rationales to constrain democratic open spaces. What Snowden did was to expose this dynamic of constraint in relation to secret surveillance programs administered  by private, for profit, contractors. Also exposed was the ‘Global Big Brother’ implications of extending surveillance to foreign societies and their governments. It is these questions that should receive our attention, and the Hollywood circus chase of Edward Snowden should cease for humanitarian and political reasons.

 

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I find the discourse surrounding the Snowden Affair bewildering. The latest reports suggest that the United States is using maximum political leverage, including coercive diplomacy, to discourage small Latin American countries from granting asylum to Edward Snowden. It is also complaining that Russia is giving Snowden ‘a propaganda platform’ and expressing its ‘disappointment’ with China/Hong Kong for its earlier refusal to expel Snowden back to the United States to face charges once his passport was cancelled.

 

This anger is misdirected.  Taking the overall situation into account, whatever anger has been generated by the Snowden Affair, should be directed at the United States for expecting other governments under the circumstances to transfer custody over Snowden. From almost every angle of relevant law, morality, and politics the human rights case for protecting Snowden against the long arm of American criminal law is overwhelming. Anyone who commits nonviolent ‘political crimes’ should almost always be entitled to be protected, and should certainly not be compelled to hole up in an airport transit lounge for weeks of anguishing suspense while governments sort out the interplay between dealing justly with Snowden and not upsetting the diplomatic applecart.

 

The persisting official U.S. approach was concisely conveyed by an American embassy official in Moscow to a Human Rights Watch representative who then was apparently asked to relay it to Snowden at his airport press conference held a few days ago: “U.S. authorities do not consider him to be a human rights defender or a whistleblower. He broke the law and he has to be held accountable.” Yes, Snowden broke American law, but he did it to reveal improprieties in the American surveillance programs that raised serious questions of the Constitutional rights of citizens, as well as the overseas legitimate concerns of foreign governments.  President Obama made an enigmatic statement to the press about the pursuit of Snowden: “We’re following all the appropriate legal cannels and working with various other countries to make sure the rule of law is observed.” If read as I would interpret the applicable rule of law, the United States should abandon its efforts to gain custody as Snowden’s alleged crimes are ‘political offenses.’ Obviously, Obama has a different understanding.

 

Russia did its part to create legal confusion when the Russian president, Vladimir Putin, told the world media that Moscow was refusing to comply with the American request to turn Snowden over because Russia had no extradition treaty with the United States, but such an assertion overlooks the political offense exception to extradition, which should certainly be applied here.

 

It has become increasingly evident even to American public opinion that a twisted logic has gripped Washington in this case. What is more, the underlying U.S. assumptions have been partially accepted by many governments throughout the world who should know better, namely that Snowden should not be the benefit of sanctuary in the face of this all out effort by the United States to prosecute him criminally. There are no applicable extradition treaties that bind the governments to turn Snowden over for prosecution to the United States in the countries where he has so far been present, and even if such a treaty did bind China or Russia, it should not be of help to Washington. Remember the elaborate inquiry into whether the Spanish extradition request in 1998 so as to prosecute the Chilean dictator, Augusto Pinochet, should be honored led to an elaborate set of legal inquiries in Britain where he was detained; he was finally sent home from London to Chile on the grounds that his medical condition made him unfit to stand trial in Spain.

It is standard practice for international law to allow governments to refuse a request for extradition in the event that the accusation involves a political crime.  It is true that the definition of a political crime is unsettled. It is widely understood that violent and heinous behavior involved in genocide, crimes against humanity, terrorism, and maybe hate speech, are not considered to be ‘political crimes.’ The rationale for this exception to transnational criminal law enforceable is humane and in keeping with a pluralist world of sovereign states. As with any protective policy, there may be a cost, but the democratic ethos is in favor of incurring such costs in the interest of curtailing abuses of state power. Such costs seem worth bearing, especially in the United States, considering several recent trends: projection of global power in a unique manner; imposing a regime of homeland security on the American people that has been shown vulnerable to abuse; a decline in the checks and balance mechanisms that offer the citizenry protection against autocratic tendencies of government, especially under wartime conditions; privatization of the security and paramilitary functions of the state. Snowden’s acts should be seen as swimming against this authoritarian tide.

 

It is a matter of upholding the quality of world order, as well as supporting an international legal order that makes the world safe for political diversity and dissent. It is the latter norm that is raised by the Snowden disclosures, the global public interest in strengthening the options of individuals who challenge what they believe to be an overreaching of state power. In the world of the 21st century, ideological diversity is less significant than whistleblowing dissent that is a fantastic public service on behalf of democratic openness, countering tendencies to rely on excessive secrecy in the name of post-9/11 security in which literally everyone, everywhere is a hypothetical threat. Of course, the balance of values and interests is not so clear except to conspiracy-minded dogmatists. The state is responsible for protecting its people against threats, and these can be mounted from within and without. It is said that ‘two wrongs don’t make a right,’ but here it is possible that ‘two rights should not be treated as a wrong.’ It may be that Snowden deserves some credit even here as reportedly he has not disclosed some material that would expose the way in which the National Security Agency (NSA) operates, which could jeopardize reasonable data collection procedures.

 

Should revealing a secret government surveillance system of global proportions be treated as revealing an international  wrong? It should be a ‘no brainer’ that Snowden’s alleged crimes are quintessentially ‘political’ in nature, which would make a grant of extradition an unlawful and regressive violation, as well as an encroachment on Snowden’s human rights. Not only this, but by far the most serious ‘crimes’ exposed by Snowden documented the seeming wrongdoing of the U.S. Government and its private contractors, including Snowden’s employer, Booz, Allen, & Hamilton. As the world now knows thanks to Snowden, the controversial surveillance targets were not only the totality of Americans, but, as well, included foreign governments and many of their most confidential activities. Under these circumstances, it seems surprising that Washington has been so vigorous in the pursuit of Snowden under conditions that made it inappropriate to prosecute him for crimes under U.S. law so long as he remained outside the country.

 

To date, the mainstream media dutifully tagging along with the crime chase narrative. The American strategy has managed to keep public attention focused on Snowden rather than on what his disclosures to date have revealed, and what more further bomb shells may be present in the material that is in the hands of the media, but not yet disclosed. It is one more negative example of ‘American exceptionalism.’ It is hard to imagine that the political leadership in Moscow or Beijing, or even London or Paris, would be lecturing Washington in a similar fashion if the shoe were on the other foot. Such a government would probably and sensibly shut up, and hope that the whole mess would quietly slip from view. Why the United States decides to act differently is worth a separate investigation.

 

We need to realize that extradition is a technique to foster maximum international collaboration designed to encourage the enhanced enforcement of national criminal law. If extradition is unavailable, as here, or even if it had been available, it would be inapplicable, there exists no respectable legal basis for the American international pursuit of Snowden? The approach adopted by Washington is quite absurd if examined objectively, and rests exclusively on its presumed geopolitical clout. What the United States has been arguing is that since it claims the authority to cancel summarily Snowden’s passport (which itself may not be ‘legal’ since the right to travel is constitutionally protected unless there has been a prior formal judicial proceeding), he has no legal right to be present in a foreign country, and hence the politically appropriate act by a foreign government is to expel him forthwith to his country of nationality. In effect, such an approach if generally adopted would make extradition completely superfluous, and in fact, because of its limitations, far less effective than the passport cancellation/expulsion ‘remedy’ that would circumvent the political crimes exception where it is most needed and appropriate.

 

Lawyers, of course, earn their living by finding ingenious ways to produce counter-arguments that sometimes override not only common sense, but public reason. In this vein, it can be plausibly argued that the crimes charged against Snowden involve espionage laws and theft of government property, and as such, extradition could be granted because such behavior does not deserve to be treated as a political crime? Some commentators have reinforced this assert by pointing to the volunteer Israeli spy, Jonathan Pollard, who has languished in American jails for years to show that the U.S. is entitled to gain control over Snowden to punish those who violate its espionage laws. Even the slightest reflection would reject the relevance of such an analogy. Pollard was unlawfully giving highly classified information to a foreign government and apprehended in the territory where the crime was committed, which makes the political nature of the crime irrelevant. If Snowden remained in the United States his political motivations could be argued in a court, but would not exempt him from criminal indictment and prosecution. His crimes could then be explained as politically motivated extra-legal instances of civil disobedience in the Thoreau/Martin Luther King tradition. Snowden’s conduct might also be defended legally by stressing his non-criminal intentions and the ‘necessity’ he reasonably believed provided a basis to reveal the realities about the truly frightening scope and depth of surveillance, and thus avoid the greater harm to public interests by its undisclosed contiuation. These were more or less the arguments that Daniel Ellsberg so persuasively relied upon in the Pentagon Papers case 40 years ago to support his contention that the American people were entitled to know how their leaders manipulated facts and law to justify Vietnam War policies.

 

What the U.S. Government is attempting with Snowden, it seems, is a classic instance of bait and switch. Since extradition could not get the results Washington so desperately wanted even if it had been available, only diplomatic leverage could do the job. Here international law is less help to Snowden, although I would have hoped that international morality would come to his rescue. The debate now evidently swirls around the appropriateness of a grant of asylum by some foreign government, and securing safe passage to such a country. Surely, a foreign government that acceded to American demands and handed Snowden over for prosecution would bear the responsibility of knowing that Snowden’s imprisonment would follow as certainly as night follows day, and that they were weakening the protection of individuals who are wanted by governments eager to prosecute political crimes.

 

So far no government has been so craven as to adopt such a course of action, although none has really mounted a principled challenge to what the United States has done, and several European states have unlawfully denied air navigation rights to Bolivia’s presidential plane because the United States suspected that Snowden was on board. And apparently Austria allowed the plane carrying Evo Morales, President of Bolivia, to make an emergency landing and then be searched, and only after it was found that he was not on board was the plane allowed to resume its flight. If he had been on board, then issue of transfer would have been raised.

There does exist an extradition treaty between Austria and the United States that entered into force in 2000, and contains the following provision in Article 4(1): “Extradition shall not be granted if the offense for which extradition is requested is a political offense.” End of story!

 

States possess wide discretion with respect to asylum policy, although asylum  is conferred as a human right by Article 14(1) of the Universal Declaration of Human Rights. Asylum should be granted whenever there exists well-founded grounds for fearing persecution if the person in question is expelled to the country of nationality. The granting and withholding of asylum has always been surrounded bycontroversial ideological considerations. During the Cold War the United States, although not formally granting asylum, never deported someone seek sanctuary from Castro’s Cuba or other Communist countries and rarely allowed sanctuary for claimants from anti-Communist countries even if fears about their wellbeing if returned were well established. It is far preferable to put asylum policy on a principled basis, but as matters now stand, there is no international legal standards that govern asylum practice.

 

Because asylum, unlike extradition, is treated as discretionary at the national level, diplomatic pressure is to be expected. Asylum is situated at the interface of law and morality, creating ample room for political maneuver. Intense geopolitical pressures can be brought to bear as in this case, but inappropriately from the perspective of human rights or the maintenance of a democratic and pluralist world order. It is particularly unseemly to place small Latin American countries under the gun of United States’ retaliatory diplomacy, especially when these governments are acting empathetically toward someone whose challenged conduct was undertaken on behalf of freedom and democracy with nothing personal to gain materially and much to lose.  It was not as if Snowden was disgruntled after being fired from his lucrative joy as a government contract employee. Or even like the CIA retirees who wait until their pensions kick in before breaking with the agency, and writing their

‘show and tell’ stories.

 

Surely, Russia is better situated than Venezuela to harbor Snowden without having to worry about adverse political consequences.  In Russia went ahead and offered Snowden asylum, perhaps the White House would express its frustration by issuing an intemperate statement about Russia’s unfriendly move, but likely leave at that. Doing anything more would be incredibly foolish, but of course that is no assurance that it wouldn’t happen.

 

All along the true challenge to the U.S. Government, the American and world independent media, and to governments and people throughout the world is consider whether such a massive regime of secret unregulated surveillance by the U.S. government in the name of national security is legally, morally, and politically acceptable. Snowden’s individual fate, although properly a matter of the greatest concern, is secondary to the substance of the issues of principle that are present.  In an unusual show of global public spiritedness and sensitivity, Navi Pillay, the UN High Commissioner for Human Rights issued a highly relevant statement: “Snowden’s case has shown the need to protect persons disclosing information on matters that have implications for human rights, as well as the importance of ensuring the rights of privacy. National systems must ensure that there are adequate avenues for individuals disclosing violations to express their concern without fear of reprisal.”

 

Despite the hue and cry associated with this rather indecent and extended effort by the U.S. Government to gain custody of Snowden, it is forgotten that his ‘criminal’ acts have already had some beneficial results:

–opening an overdue national debate in the United States as to the proper balance between surveillance and security;

–creating a global awareness of the extent to which the American surveillance regime has a global reach that threatens confidentiality of foreign governmental activity and the privacy of ordinary persons everywhere;

–encouraging relevant Congressional committees to consider placing limitations on invasions of privacy;

–tightening of the rules and policies relating to Department of Justice interference with journalists via acquisition of phone logs and emails.

 

We will miss the most crucial point of Snowden’s ‘crimes’ if we do not devote our attention to these fundamental political challenges directed at human security, democratic ways of life, and a pluralist world order. To be  distracted by the circus of the Snowden chase any longer is to play along with a shameless geopolitical caper!

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26 Responses to “Global Big Brother and the Snowden Hollywood Chase”

  1. Francis Oeser July 16, 2013 at 5:27 am #

    RICHARD,
    I read your piece in EJE yesterday, with admiration for its clarity and wisdom.

    No comments, only a thought that America’s ‘exeptionalism’ destroys every international agreement/ law protocol; for if USA can ignore such illegalities, why shouldn’t anyone else? A dangerous position counter to decades of committed work to find agreements everyone subscribes to. International Law needs active agreement as well as drafting if it is to have any authority. The US is destroying everyones’ chance of a decent life, sharing the planet.
    This is additional to the harm to its citizens which you rightly show.

    Regards,
    Francis

  2. NormaJFHarrison July 16, 2013 at 1:59 pm #

    Russia and them are allying against the imperium. So the Western imperium is depicting those opposing as imperialist, as being like themselves, as though in direct contest with the present rulers.

    But Russia’s/et al’s position is only a self-defense. Those nations noway have the material ability to compete with the U.S.+its toadies.

    Their opposition is based solely on their apparent principles. What a cheat; using the morality that effectively opposes at least, what’s called unbridled capitalism – but just capitalism – itself a brutal crime beyond measure. (every time we measure it it reaches further into abuse of us/Earth.)

    This does not exonerate Russia, China, etc as though their contradictions are not evident. It remains to be seen what the possible rise of people power might work to bring about. Meanwhile constant resistance against the U.S. is very informational, again, for people on the ground everywhere.

    Norma normaha@pacbell.net

  3. NormaJFHarrison July 16, 2013 at 1:59 pm #

    Russia and them are allying against the imperium.  So the Western imperium is depicting those opposing as imperialist, as being like themselves, as though in direct contest with the present rulers. But Russia’s/et al’s position is only a self-defense.  Those nations noway have the material ability to compete with the U.S.+its toadies.   Their opposition is based solely on their apparent principles.  What a cheat; using the morality that effectively opposes at least, what’s called unbridled capitalism – but just capitalism – itself a brutal crime beyond measure.  (every time we measure it it reaches further into abuse of us/Earth.) This does not exonerate Russia, China, etc as though their contradictions are not evident.  It remains to be seen what the possible rise of people power might work to bring about.  Meanwhile constant resistance against the U.S. is very informational, again, for people on the ground everywhere. Norma

    >________________________________ > From: WordPress.com comment-reply@wordpress.com  To: normaha@pacbell.net >Sent: Tuesday, July 16, 2013 2:34 AM >Subject: [New post] Global Big Brother and the Snowden Hollywood Chase > > WordPress.com >Richard Falk posted: ” The post below is a major revision of another piece on the Snowden Affair that was published in AJE. I have dwelled on the pursuit of Snowden because it raises such vital issues of principle, but also because so much of the public discourse has proceede” >

  4. Kata Fisher July 17, 2013 at 9:23 am #

    I woke up this morning and I had a reflection:
    There is a word in the Scripture and it is a mystery. Does anyone know what it exactly may mean by Word or Spirit? This word: “Michtam/miktam” that occurs in Scripture six times by David.

  5. Maggie Roberts July 17, 2013 at 6:21 pm #

    Dear Richard: I love the clarity and depth of your posts and this is no criticism, but please have you ever thought of doing a concise summary, for I often do not have the
    time to read and absorb the whole of your always pertinent thoughts.

    • Richard Falk July 17, 2013 at 9:34 pm #

      Dear Maggie:

      A valuable suggestion that I had not thought about before, but will now consider. Thanks..

      Richard

  6. Kata Fisher July 17, 2013 at 8:01 pm #

    Yes–an outline…point by point–a teaching viewpoint/philosophy. That is what it can be, for teaching of our beloved Mr. Flaks is a specific teaching that is a very, very valid teaching. Look and see.

  7. Gene Schulman July 18, 2013 at 7:57 am #

    I don’t wish to sound mean, or censorious, but would it be possible to bleep, or at least restrict, Kata Fisher’s “spiritual” comments? They are driving me away from following Richard’s blog. I notice that quite a few other regular commenters also seem to have dropped out.

    • Kata Fisher July 18, 2013 at 9:20 am #

      Dear Gene,

      I say “Sure” I mean “yes”… censor all, but Spirit. (Smile). You have license given by me…I yield.
      K.F.

      By the way…I am at Colorado, CS metro and Webster Online…outing…there is nothing else to do in the land :)

      K.F.

      • Kata Fisher July 18, 2013 at 12:09 pm #

        I have personal reflection: I am very sloppy in sorting things out… Jonathan would say: “Ha, ha, ha…man, this is just chaos; it is messy.”
        I am glad that our beloved Mr. Walker is here, otherwise, I would be very worried :)

    • NormaJFHarrison July 19, 2013 at 12:55 pm #

      People have a life – so don’t keep up with replies/comments; not that they object to posts so don’t continue posting. http://www.peaceandfreedom.org Register, to keep socialism on the ballot.

      • Kata Fisher July 19, 2013 at 2:06 pm #

        Norma,

        I totally agree with you…silence is also a form of liturgical order, in a way. I believe that here in this presence people are spiritual.
        With that, I am never anxious when people say nothing—or have nothing to say.

        When people apply psychological warfare, or abuse the concepts of emotional intelligence–I do not like that, still I can apply Spiritual warfare and throw things like that off, just by Spirit of God…still, this is not an excellent way to go about things, all together. It is not an excellent way toward those who are spiritual in this presence.

        Those who are not righteous–need/deserve a correction/rebuke by Spirit of God, and deserve Spiritual warfare against them and only for their own benefit. It is useless to me, I have things to do…still I can and will drop all that I do, and do that which Spirit of God appoints me to do.

        I would never apply Psychological warfare and bend means of emotional intelligence…applicaton of it because it is unethical and I do not believe in that. Spiritual warfare is outside will-power of mine; it is the Spirit that moves on my behave.

        But those who are spiritual and by God’s Spirit would prefer to avoid even that (spiritual warfare). We like to explain, show things that we perceive–or understand. We do that by divine order and direction of the Spirit–so that gifts of God Spirit are activated in all of us (Jews and non-Jews).

        We talk it out; in natural terms we do so, and avoid circling around in spiritual realms. (Circling around in spiritual realms tends to be useless).

        I enjoy to be still and know that there is God.

        Thank you for warm thoughts, and wonderful explanation. I am neutral and cannot join any organizations, but I do not mind to assist good will as I am moved by Spirit. I am very neutral as Church-Charismatic.

        Lawless practices of religious in the land, as well as lawless economical approaches of theirs violate human/child rights, and effect is always and often aimed toward abuse of women and children–spiritually and economically to deepest extends abuses in the land, so do all that you can.

        By Faith,
        K.F.

      • NormaJFHarrison July 19, 2013 at 2:23 pm #

        uww I’m so sorry I said anything – yes people will leave – at least, leave this conversation. And if you continue to thrust this into Falk’s comments, his work might never see the light of day again.

      • Kata Fisher July 19, 2013 at 2:53 pm #

        When people are under stress they cannot do their work, and are hindered. Our beloved Mr. Falk was in experience that was stressful due to those who are religious—religiously unrighteous in essence. Just attacks irrational, and a hindering force…I did see that.

        Also, I had opportunity to read some of offensive comments that were written down toward him on this blog, over the time.

        But here we are…Base our arguments on religious obnoxiousness and/or irrational base–or by Spirit alone we say things that we say :)

        Perhaps, some were enlightened just for a while, in a way :)

        religiously unrighteous is a short-cut, in a way. We dismiss that.

  8. Kata Fisher July 19, 2013 at 11:30 am #

    I was reading my school work and I had another reflection: What if solving human problem is not solving all problems of human cause and effects, but a strategic-wicked (in a way) cause and effect.
    We try to solve problems that effect humanity, but impact is strategically a miss, by objectives alone.
    Where and how exactly one applies penal suppress?

    That is exactly what flew through my mind.

  9. NormaJFHarrison July 19, 2013 at 12:51 pm #

    Perhaps someone cares to translate this. I appreciate the partial explanation, saying it’s spiritual – co-opting spirit into a ghost instead of the jumping up and down with joy or rage or such.
    normaha@pacbell.net http://www.peaceandfreedom.org (most faith-full, spirit-yuall, etc., best religion.)

    Kata FisherJuly 19, 2013 at 11:30 am#
    I was reading my school work and I had another reflection: What if solving human problem is not solving all problems of human cause and effects, but a strategic-wicked (in a way) cause and effect.
    We try to solve problems that effect humanity, but impact is strategically a miss, by objectives alone.
    Where and how exactly one applies penal suppress?
    That is exactly what flew through my mind.

  10. Gene Schulman July 23, 2013 at 5:41 am #

    @ NormaJFHarrison

    This is exactly the point I was trying to make above. Here we are on 23 July and not one comment has been made on this blog since the 19th when Kata Fisher took it over. Not even a whisper from Richard Falk.

    I hope Richard is enjoying his vacation in Turkey and will soon be back with more of his wisdom. Perhaps something about the alleged Middle East peace talks that John Kerry is trying to engineer, or rather delay. BTW: Though those talks are being discussed all over the internet, not one word has been said about them in the MSM, save for Roger Cohen’s misleading op-ed in today’s NYT: http://www.nytimes.com/2013/07/23/opinion/global/roger-cohen-the-two-state-imperative.html?hp. Maybe the insiders know they will lead nowhere.

    • Kata Fisher July 24, 2013 at 7:12 am #

      Dear Mr. Schulman,
      I read the article; it is very revealing.
      Thank you,
      K.F.

      • Gene Schulman July 24, 2013 at 8:05 am #

        Here’s another even more interesting and revealing link http://www.nybooks.com/articles/archives/2013/aug/15/what-future-israel/?pagination=false&printpage=true

        Thank you for keeping your reply short

        Gene

      • Kata Fisher July 24, 2013 at 2:19 pm #

        You are most welcome, Gene. Thank you.

        Two things triggered brainstorming: 1) Israeli settlements, and Israeli Army. It is positive, and one negative. But do not have a full understand of this.

        Israeli settlements are exiles on Israeli Land that is Holy. (Positive)

        Palestine settlements are exiles in the Holy Land and Isreal. (Positive)

        It is valid that Israeli Army is in Palestine, and so to assists all of the people/exiles of the Holy Land (Positive).

        Israeli Army is not assisting people/exiles that are in region of Gaza. (Negative)

        That is what is coming through my mind.

        Palestine is an Ecclesiastical entity along with Gaza (I see that).
        K.F.

Trackbacks/Pingbacks

  1. Global Big Brother and the Snowden Hollywood Chase | Research Material - July 16, 2013

    […] We will miss the most crucial point of Snowden’s ‘crimes’ if we do not devote our attention to these fundamental political challenges directed at human security, democratic ways of life, and a pluralist world order. To be distracted by the circus of the Snowden chase any longer is to play along with a shameless geopolitical caper! via Facebook http://richardfalk.wordpress.com/2013/07/16/global-big-brother-and-the-snowden-hollywood-chase/ […]

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