straight from lynne stewart's website x isearlier material
The Lynne Stewart Guilty Verdict: Stretching the Definition of
"Terrorism" To Its Limits
By ELAINE CASSEL
---- Monday, Feb. 14, 2005
On February 10, after thirteen days of deliberations, a federal
jury in New York City returned a guilty verdict in the case of
65-year-old attorney Lynne Stewart. The jury found Stewart guilty on
five counts of defrauding the government, conspiracy, and providing
support for terrorism.
Stewart will be sentenced on July 15. She may serve up to thirty
years in prison. Appeals are expected to consume years. In the
meantime, Stewart will lose her right to practice law and face hard
prison time.
The eavesdropping on attorney-client communications that led to this
prosecution would have been unimaginable before September 11. I will
argue that this eavesdropping has a serious cost in inhibiting
defense attorney's ability to zealously represent their clients.
This cost is of a constitutional dimension: The Sixth Amendment's
right to counsel cannot be served while the government is a third
party present at attorney-client meetings.
Another problematic aspect of the Stewart prosecution is how far
the definition of support for terrorism was stretched. Stewart never
provided any financial support, weaponry -- or any other concrete aid
-- for any act of terrorism. No act of terrorism is alleged to have
resulted from her actions.
Stewart's supposed support for terrorism instead consisted of
aiding her client in 2000 by giving a press release to Reuters News
Service in Cairo, Egypt, and of being present when her co-defendants
allegedly aided her client in writing a series of letters.
The Facts of the Case
Stewart was appointed by a federal court to represent Egyptian
Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to
commit acts of terrorism in New York City in the months after the
1993 World Trade Center bombings. But Stewart had nothing to do with
that conspiracy.
Rahman is currently serving a life sentence in federal prison
hospital in Colorado (previously, he was serving his sentence in
Minnesota).
Stewart continued to represent Rahman, after he was convicted, and
his appeals were denied. She has said that her representation had
two main purposes. One was trying to improve the terms of the blind
and diabetic Sheik's confinement. Another was to try to convince the
U.S. to return him to his home countryeaThe government, however,
claimed that her continued representation was a ruse so that she
could aid the Sheik in getting messages out to his followers, members
of the Islamic Group, an organization tied to terrorism.
For a time, the government simply denied Stewart access to her
client. But in 2000, the Justice Department said that visits could
resume if Stewart would agree to certain restrictions on their The
government, however, claimed that her continued representation was a
ruse so that she could aid the Sheik in getting messages out to his
followers, members of the Islamic Group, an organization tied to
terrorism.
For a time, the government simply denied Stewart access to her
client. But in 2000, the Justice Department said that visits could
resume if Stewart would agree to certain restrictions on their these
restrictions can be placed on a federal prisoner's communications or
contacts with the outside world -- including visitors, and the media
-- when the government believes "that there is a substantial risk
that a prisoner's communications or contacts with persons could
result in death or serious bodily injury to persons, or substantial
damage to property that would entail the risk of death or serious
bodily injury to persons."
The SAM's prohibited Stewart from having any contact with her
client that the Department of Justice deemed to be outside the scope
of "legal representation" and prohibited Rahman from having contact
with anyone outside prison walls except his wife. The SAM's
specifically restricted his access to the media.
Stewart agreed to the SAM's -- having little choice, as it was the
only way she could visit her client.
What Stewart did not know what that after she signed the SAM's,
the government began surveillance of her visits, first under the 1994
Foreign Intelligence Surveillance Act warrant targeting her client,
and then under specific regulations that allowed them to target her.
The Eavesdropping Regulation: How the Government Made Its Case
On October 31, 2001, Attorney General John Ashcroft, secretly
amended the SAM regulations -- without notice to the public. As
amended, the regulations allow the Bureau of Prisons to conduct
videotape and audiotape surveillance with respect to attorneys'
communications with people in federal custody.
There is no exception for attorney-client privileged
communications; indeed, the regulations contemplate that these
sacrosanct conversations will be the very ones surveilled. Moreover,
the regulations apply not only to convicted persons, but also to
defendants awaiting trial -- and even detainees against whom no
charges are even pending. Finally, the surveillance can be broad: It
can done "to the extent determined to be reasonably necessary for the
purpose of deterring future acts of violence or terrorism."
No warrant is necessary for the surveillance to occur. Nor is
specific notice to the attorney or the client that they will be
monitored; according to the regulations. Rather, routine notice that
their communications "may" be monitored is enough.
The government eavesdropped on Stewart's communications with
Rahman -- and these communications, along with her subsequent
communications with the media, are the sole basis for her conviction.
The government alleges that Stewart never intended to abide by the
SAM's, and that -- as, it say, it discovered by eavesdropping -- she
violated them in several ways.
Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar
who sometimes acted in the role of a law clerk, the government
alleges, Stewart tried to thwart the government's surveillance. At
trial, the government introduced surveillance tapes intending to
demonstrate that Stewart served as a willing conduit for the Sheik,
using her position as a lawyer as a smokescreen for illegal
communications and conspiracies by people whose agenda she shared.
In particular, the government charges, Stewart violated the
prohibition on outside contacts in two ways. First, it alleged in
2000, she released to Reuters News Service a statement from the Sheik
to his followers saying that he was "withdrawing his support for a
ceasefire that currently exists" with respect to violence that his
followers in Egypt were engaged in (the cease-fire was declared after
58 tourists were slain in
Luxor, Egypt, in a bid to win the sheik's release). The government
charged that the press release was a veiled message for the shiek's
followers to engage in violence. Reuters ran a story about the
statement in Arab newspapers.
Second, the government says Stewart was present when Yousry and
Sattar allegedly helped the Sheik compose letters that served as
communications to his followers. (Notably, though, while Yousry and
Sattar speak Arabic, it is undisputed that Stewart neither speaks nor
understands Arabic.)
In closing arguments, Prosecutor Andrew Dember argued that Stewart
and the co-defendants effectuated a virtual "jail-break," in which
Rahman did not actually get sprung from prison, but did get his
messages of violence out to the world.
Yet no actual act of violence, terroristic or otherwise, has ever
been linked to either the letters to the Sheik's followers, or the
statement by the Sheik given to Reuters.
Yousry was convicted on the same charges as Stewart; Sattar was
convicted of conspiracy to murder civilians.
The Constitutional Issues The Eavesdropping Regulations Raise
Stewart herself was represented by famed civil rights and criminal
defense attorney Michael Tigar. Tigar argued, on her behalf that the
surveillance regulation was unconstitutional -- and thus that
evidence procured as a result of surveillance should not be
admissible at Stewart's trial. Although Tigar and Stewart lost their
motion, their argument was a strong one.
The Sixth Amendment guarantees a criminal defendant's right to
counsel. The Ashcroft eavesdropping regulations are unprecedented in
the way they interpose the government between a client and his or her
attorney -- and thus violate this right. How can a defendant be
expected to speak openly and candidly with counsel, and contribute to
his own defense, when the government is listening on every
conversation, recording every gesture, following every move?
The trial judge in the case, John G. Koeltl, should have
suppressed the eavesdropping evidence, but instead, he ruled against
Stewart. He did, however, rule for her on another constitutional
claim.
Judge Koeltl's Rulings on the Terrorism Claims
Remember, Stewart was convicted of defrauding the government,
conspiracy, and providing support for terrorism.
The "defrauding the government" charge was weak: It was based on
the government's allegation that Stewart never intended to abide by
the SAM's, as she had agreed to do. But it seems likely that
Stewart's intention, instead, was to abide by the SAM's in order to
continue to represent her client.
Moreover, the original terrorism charge against Stewart was
unconstitutional, as Judge Koeltl held. Initially, Stewart was
charged under a federal statute that prohibited providing "material
support" for terrorism -- regardless of one's intent in doing so.
The government said Stewart violated the statute by making
Rahman's message available to the press. (Where was the "material"
support? The government said it came in the form of "personnel" --
meaning, Stewart herself.)
Judge Koeltl wisely reasoned that to prosecute Stewart under this
theory was unconstitutional. She lacked sufficient notice that the
statute would be applied this way -- to prohibit a news release,
rather than, say, the provision of weaponry. He ruled that the
statute applied to the facts of Stewart's case was too vague to
satisfy Due Process requirements.
So the government, as it explained in a press release, then
indicted Stewart for the same acts again, under another federal
statute -- one that, unlike the first statute, requires intent.
Passed in 1994, after the 1993 bombing of the World Trade Center,
the statute prohibits defines a violation as giving material support
to anyone while intending or knowing that the support will be used in
connection with any one of a list of violent crimes.
What violent crime did the government cite? It claimed Sattar was
alleged to have been conspiring to commit terrorism abroad, urging
Rahman's followers to kill Jews. But again, no such crimes have ever
been linked to the Reuters news release.
This time, Judge Koeltl found the statute, as applied, to be
constitutional. But in doing so, he interpreted the intent standard
to require very specific proof: proof that
Stewart knew she was providing resources to carry out a specific
violent crime.
The Stewart Conviction is a Warning to Defense Attorneys
Stewart's defense team had doubts that the prosecution could carry
this strong burden of proof. Though the facts were basically not in
dispute, Tigar argued that Stewart was acting as a zealous advocate.
The ABA's Code of Professional Conduct demands zealousness of
lawyers. It also mandates that lawyers make their services available
to unpopular causes. Stewart was fulfilling both duties by agreeing
to serve as court-appointed attorney for Rahman, the defense argued.
Stewart admitted she violated the SAM's, but she was duty-bound to
do so, she said. What self-respecting defense attorney, she
contended, would let a government restriction stand in the way of the
confidential attorney-client relationship?
Through helping with the news release, Tigar maintained, Stewart,
as his lawyer, was trying to keep her client's case before the public
and the government, and ultimately hoping to gain his release to
Egypt.
The government countered, and the jury agreed, that when she so
spoke, and aided her co-defendants in speaking, she was no longer
acting as a lawyer. She was aiding and abetting terrorism.
Prior to September 11, 2001, many attorneys might have sided with
Stewart. They would certainly have seen a blatant Sixth Amendment
violation in both the SAM's and the eavesdropping regulations -- and
possibly seen First Amendment violations when it came to the SAM's.
And they might also have agreed that to honor the right to counsel,
an attorney ought to try to resurrect the traditional attorney-client
relationship despite these unconstitutional constraints.
Now, however, the First and Sixth Amendments have been gutted--at
least in terms of the attorney-client relationship. Indeed, as I
argued in the first article I wrote about Stewart, the government
seems to be conducting an all-out assault on the right to counsel.
Defense attorneys who represent alleged terrorists -- or even
detainees who are merely suspected of some connection to terrorism --
now know that the government may listen in on their attorney-client
communications. They also know that this eavesdropping may give rise
to evidence that may be used in their own prosecution for terrorism
if they cross the imaginary line drawn by the government.
How can these attorneys be zealous advocates with this
government-inspired fear overshadowing their every word?
If the attorneys are prosecuted, they can expect, at trial, to be
conflated with their clients -- just as Stewart was. The prosecution
showed an old tape of Osama bin Laden promising revenge if Rahman
were not released. In a courtroom only a short distance from Ground
Zero, the tape must have meant a great deal. But it related to
Rahman, not Stewart. Though Rahman may be a Bin Laden confederate,
that does not mean his attorney is.
The larger issue here is not whether Stewart "stepped over the
line" from lawyer to criminal co-conspirator, as the jury verdict
implies. Nor is it whether terrorism fears caused the jury to reach
an irrational verdict -- as may well be the case. The larger issue
is that those who face terrorism-related charges will now be entitled
to a government-crippled defense.
The Ashcroft Justice Department showed disdain for attorneys--save
its own. Unfortunately, the Gonzales Justice Department likely will
be even worse on this score. Referring to the Stewart verdict,
Gonzales was quick to warn that he would "pursue both those who carry
out acts of terrorism and those who assist them with their murderous
goals." (Emphasis added.)
This is pure hyperbole -- treating Stewart's willingness to assist
her client in putting out a press release as the moral equivalent of
financing or arming terrorists. It furthers the lie that a
terrorist's lawyer, by zealously representing her client, at the same
time aids and abets terrorism.
Hundreds of prisoners alleged to be terrorist combatants sit in
cages and cells in Guantanamo Bay, Cuba. Every one, according to the
Supreme Court, has the right to challenge his detention in federal
court, through the ancient writ of habeas corpus.
What attorneys will risk their licenses --and life in prison --in
order to protect their rights? The Lynne Stewart Guilty Verdict:
Stretching the Definition of "Terrorism" To Its Limits
By ELAINE CASSEL
---- Monday, Feb. 14, 2005
On February 10, after thirteen days of deliberations, a federal
jury in New York City returned a guilty verdict in the case of
65-year-old attorney Lynne Stewart. The jury found Stewart guilty on
five counts of defrauding the government, conspiracy, and providing
support for terrorism.
Stewart will be sentenced on July 15. She may serve up to thirty
years in prison. Appeals are expected to consume years. In the
meantime, Stewart will lose her right to practice law and face hard
prison time.
The eavesdropping on attorney-client communications that led to this
prosecution would have been unimaginable before September 11. I will
argue that this eavesdropping has a serious cost in inhibiting
defense attorney's ability to zealously represent their clients.
This cost is of a constitutional dimension: The Sixth Amendment's
right to counsel cannot be served while the government is a third
party present at attorney-client meetings.
Another problematic aspect of the Stewart prosecution is how far
the definition of support for terrorism was stretched. Stewart never
provided any financial support, weaponry -- or any other concrete aid
-- for any act of terrorism. No act of terrorism is alleged to have
resulted from her actions.
Stewart's supposed support for terrorism instead consisted of
aiding her client in 2000 by giving a press release to Reuters News
Service in Cairo, Egypt, and of being present when her co-defendants
allegedly aided her client in writing a series of letters.
The Facts of the Case
Stewart was appointed by a federal court to represent Egyptian
Sheik Omar Abdel Rahman. Rahman was convicted of conspiring to
commit acts of terrorism in New York City in the months after the
1993 World Trade Center bombings. But Stewart had nothing to do with
that conspiracy.
Rahman is currently serving a life sentence in federal prison
hospital in Colorado (previously, he was serving his sentence in
Minnesota).
Stewart continued to represent Rahman, after he was convicted, and
his appeals were denied. She has said that her representation had
two main purposes. One was trying to improve the terms of the blind
and diabetic Sheik's confinement. Another was to try to convince the
U.S. to return him to his home countryeaThe government, however,
claimed that her continued representation was a ruse so that she
could aid the Sheik in getting messages out to his followers, members
of the Islamic Group, an organization tied to terrorism.
For a time, the government simply denied Stewart access to her
client. But in 2000, the Justice Department said that visits could
resume if Stewart would agree to certain restrictions on their The
government, however, claimed that her continued representation was a
ruse so that she could aid the Sheik in getting messages out to his
followers, members of the Islamic Group, an organization tied to
terrorism.
For a time, the government simply denied Stewart access to her
client. But in 2000, the Justice Department said that visits could
resume if Stewart would agree to certain restrictions on their these
restrictions can be placed on a federal prisoner's communications or
contacts with the outside world -- including visitors, and the media
-- when the government believes "that there is a substantial risk
that a prisoner's communications or contacts with persons could
result in death or serious bodily injury to persons, or substantial
damage to property that would entail the risk of death or serious
bodily injury to persons."
The SAM's prohibited Stewart from having any contact with her
client that the Department of Justice deemed to be outside the scope
of "legal representation" and prohibited Rahman from having contact
with anyone outside prison walls except his wife. The SAM's
specifically restricted his access to the media.
Stewart agreed to the SAM's -- having little choice, as it was the
only way she could visit her client.
What Stewart did not know what that after she signed the SAM's,
the government began surveillance of her visits, first under the 1994
Foreign Intelligence Surveillance Act warrant targeting her client,
and then under specific regulations that allowed them to target her.
The Eavesdropping Regulation: How the Government Made Its Case
On October 31, 2001, Attorney General John Ashcroft, secretly
amended the SAM regulations -- without notice to the public. As
amended, the regulations allow the Bureau of Prisons to conduct
videotape and audiotape surveillance with respect to attorneys'
communications with people in federal custody.
There is no exception for attorney-client privileged
communications; indeed, the regulations contemplate that these
sacrosanct conversations will be the very ones surveilled. Moreover,
the regulations apply not only to convicted persons, but also to
defendants awaiting trial -- and even detainees against whom no
charges are even pending. Finally, the surveillance can be broad: It
can done "to the extent determined to be reasonably necessary for the
purpose of deterring future acts of violence or terrorism."
No warrant is necessary for the surveillance to occur. Nor is
specific notice to the attorney or the client that they will be
monitored; according to the regulations. Rather, routine notice that
their communications "may" be monitored is enough.
The government eavesdropped on Stewart's communications with
Rahman -- and these communications, along with her subsequent
communications with the media, are the sole basis for her conviction.
The government alleges that Stewart never intended to abide by the
SAM's, and that -- as, it say, it discovered by eavesdropping -- she
violated them in several ways.
Along with Mohammed Yousry, an interpreter, and Ahmed Abdel Sattar
who sometimes acted in the role of a law clerk, the government
alleges, Stewart tried to thwart the government's surveillance. At
trial, the government introduced surveillance tapes intending to
demonstrate that Stewart served as a willing conduit for the Sheik,
using her position as a lawyer as a smokescreen for illegal
communications and conspiracies by people whose agenda she shared.
In particular, the government charges, Stewart violated the
prohibition on outside contacts in two ways. First, it alleged in
2000, she released to Reuters News Service a statement from the Sheik
to his followers saying that he was "withdrawing his support for a
ceasefire that currently exists" with respect to violence that his
followers in Egypt were engaged in (the cease-fire was declared after
58 tourists were slain in
Luxor, Egypt, in a bid to win the sheik's release). The government
charged that the press release was a veiled message for the shiek's
followers to engage in violence. Reuters ran a story about the
statement in Arab newspapers.
Second, the government says Stewart was present when Yousry and
Sattar allegedly helped the Sheik compose letters that served as
communications to his followers. (Notably, though, while Yousry and
Sattar speak Arabic, it is undisputed that Stewart neither speaks nor
understands Arabic.)
In closing arguments, Prosecutor Andrew Dember argued that Stewart
and the co-defendants effectuated a virtual "jail-break," in which
Rahman did not actually get sprung from prison, but did get his
messages of violence out to the world.
Yet no actual act of violence, terroristic or otherwise, has ever
been linked to either the letters to the Sheik's followers, or the
statement by the Sheik given to Reuters.
Yousry was convicted on the same charges as Stewart; Sattar was
convicted of conspiracy to murder civilians.
The Constitutional Issues The Eavesdropping Regulations Raise
Stewart herself was represented by famed civil rights and criminal
defense attorney Michael Tigar. Tigar argued, on her behalf that the
surveillance regulation was unconstitutional -- and thus that
evidence procured as a result of surveillance should not be
admissible at Stewart's trial. Although Tigar and Stewart lost their
motion, their argument was a strong one.
The Sixth Amendment guarantees a criminal defendant's right to
counsel. The Ashcroft eavesdropping regulations are unprecedented in
the way they interpose the government between a client and his or her
attorney -- and thus violate this right. How can a defendant be
expected to speak openly and candidly with counsel, and contribute to
his own defense, when the government is listening on every
conversation, recording every gesture, following every move?
The trial judge in the case, John G. Koeltl, should have
suppressed the eavesdropping evidence, but instead, he ruled against
Stewart. He did, however, rule for her on another constitutional
claim.
Judge Koeltl's Rulings on the Terrorism Claims
Remember, Stewart was convicted of defrauding the government,
conspiracy, and providing support for terrorism.
The "defrauding the government" charge was weak: It was based on
the government's allegation that Stewart never intended to abide by
the SAM's, as she had agreed to do. But it seems likely that
Stewart's intention, instead, was to abide by the SAM's in order to
continue to represent her client.
Moreover, the original terrorism charge against Stewart was
unconstitutional, as Judge Koeltl held. Initially, Stewart was
charged under a federal statute that prohibited providing "material
support" for terrorism -- regardless of one's intent in doing so.
The government said Stewart violated the statute by making
Rahman's message available to the press. (Where was the "material"
support? The government said it came in the form of "personnel" --
meaning, Stewart herself.)
Judge Koeltl wisely reasoned that to prosecute Stewart under this
theory was unconstitutional. She lacked sufficient notice that the
statute would be applied this way -- to prohibit a news release,
rather than, say, the provision of weaponry. He ruled that the
statute applied to the facts of Stewart's case was too vague to
satisfy Due Process requirements.
So the government, as it explained in a press release, then
indicted Stewart for the same acts again, under another federal
statute -- one that, unlike the first statute, requires intent.
Passed in 1994, after the 1993 bombing of the World Trade Center,
the statute prohibits defines a violation as giving material support
to anyone while intending or knowing that the support will be used in
connection with any one of a list of violent crimes.
What violent crime did the government cite? It claimed Sattar was
alleged to have been conspiring to commit terrorism abroad, urging
Rahman's followers to kill Jews. But again, no such crimes have ever
been linked to the Reuters news release.
This time, Judge Koeltl found the statute, as applied, to be
constitutional. But in doing so, he interpreted the intent standard
to require very specific proof: proof that
Stewart knew she was providing resources to carry out a specific
violent crime.
The Stewart Conviction is a Warning to Defense Attorneys
Stewart's defense team had doubts that the prosecution could carry
this strong burden of proof. Though the facts were basically not in
dispute, Tigar argued that Stewart was acting as a zealous advocate.
The ABA's Code of Professional Conduct demands zealousness of
lawyers. It also mandates that lawyers make their services available
to unpopular causes. Stewart was fulfilling both duties by agreeing
to serve as court-appointed attorney for Rahman, the defense argued.
Stewart admitted she violated the SAM's, but she was duty-bound to
do so, she said. What self-respecting defense attorney, she
contended, would let a government restriction stand in the way of the
confidential attorney-client relationship?
Through helping with the news release, Tigar maintained, Stewart,
as his lawyer, was trying to keep her client's case before the public
and the government, and ultimately hoping to gain his release to
Egypt.
The government countered, and the jury agreed, that when she so
spoke, and aided her co-defendants in speaking, she was no longer
acting as a lawyer. She was aiding and abetting terrorism.
Prior to September 11, 2001, many attorneys might have sided with
Stewart. They would certainly have seen a blatant Sixth Amendment
violation in both the SAM's and the eavesdropping regulations -- and
possibly seen First Amendment violations when it came to the SAM's.
And they might also have agreed that to honor the right to counsel,
an attorney ought to try to resurrect the traditional attorney-client
relationship despite these unconstitutional constraints.
Now, however, the First and Sixth Amendments have been gutted--at
least in terms of the attorney-client relationship. Indeed, as I
argued in the first article I wrote about Stewart, the government
seems to be conducting an all-out assault on the right to counsel.
Defense attorneys who represent alleged terrorists -- or even
detainees who are merely suspected of some connection to terrorism --
now know that the government may listen in on their attorney-client
communications. They also know that this eavesdropping may give rise
to evidence that may be used in their own prosecution for terrorism
if they cross the imaginary line drawn by the government.
How can these attorneys be zealous advocates with this
government-inspired fear overshadowing their every word?
If the attorneys are prosecuted, they can expect, at trial, to be
conflated with their clients -- just as Stewart was. The prosecution
showed an old tape of Osama bin Laden promising revenge if Rahman
were not released. In a courtroom only a short distance from Ground
Zero, the tape must have meant a great deal. But it related to
Rahman, not Stewart. Though Rahman may be a Bin Laden confederate,
that does not mean his attorney is.
The larger issue here is not whether Stewart "stepped over the
line" from lawyer to criminal co-conspirator, as the jury verdict
implies. Nor is it whether terrorism fears caused the jury to reach
an irrational verdict -- as may well be the case. The larger issue
is that those who face terrorism-related charges will now be entitled
to a government-crippled defense.
The Ashcroft Justice Department showed disdain for attorneys--save
its own. Unfortunately, the Gonzales Justice Department likely will
be even worse on this score. Referring to the Stewart verdict,
Gonzales was quick to warn that he would "pursue both those who carry
out acts of terrorism and those who assist them with their murderous
goals." (Emphasis added.)
This is pure hyperbole -- treating Stewart's willingness to assist
her client in putting out a press release as the moral equivalent of
financing or arming terrorists. It furthers the lie that a
terrorist's lawyer, by zealously representing her client, at the same
time aids and abets terrorism.
Hundreds of prisoners alleged to be terrorist combatants sit in
cages and cells in Guantanamo Bay, Cuba. Every one, according to the
Supreme Court, has the right to challenge his detention in federal
court, through the ancient writ of habeas corpus.
What attorneys will risk their licenses --and life in prison --in
order to protect their rights?
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