HASPEL’S CIA NOMINATION: legality v. morality in the balance

CIA follows the law. We followed the law then. We follow the law today.

Gina Haspel, US Senate Intelligence Committee Confirmation Hearing, 9 May 2018

Gina Haspel

Gina Haspel is supremely qualified to be the next director of the US Central Intelligence Agency (CIA). For the past 33 years, she has worked her way up the CIA ladder from entry-level operative to station chief to Deputy Director. We do not know most of what she has done because the CIA – per its directives to which Haspel, as the current Acting CIA Director, is adhering – will not release most of the classified information in its files on Haspel’s activities. We do know however that she was directly – and some may say enthusiastically – involved in the CIA’s post 9/11 (2001) rendition, detention, and interrogation program, where torture (euphemistically referred to as enhanced interrogation techniques) was used with exuberant abandon.

If only the selection process for the next CIA Director was based solely on qualifications. Thankfully, it is not.

Ever since the exposure of the abhorrent events at Abu Ghraib prison – where, at the hands of US military personnel and private contractors, Iraqi detainees were tortured, humiliated, and abused – US lawmakers in Washington have become a bit more sensitive to this sort of conduct.

Some seem to have no qualms if a suspected or known “terrorist” is tortured – so long as it is kept secret. What is the temporary or even long-lasting pain of a few individuals when considering the greater good – the saving of hundreds, even thousands of lives?

Foolishly, the group-think of these lawmakers is that torture, when properly done, yields good intelligence. The Senate Select Committee on Intelligence concluded that this is a false premise in 2012: “While being subjected to the CIA’s enhanced interrogation techniques and afterwards, multiple CIA detainees fabricated information … on critical intelligence issues, including the terrorist threats which the CIA identified as its higher priorities.” (See page 2 of the Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, findings and conclusions). This conclusion was reached in hindsight, but anyone working on Capitol Hill in the halls of the US Congress would have known of the harrowing torture Senator John McCain endured for years at the hands of his North Vietnamese captors.

More enlightened US lawmakers see it differently, viewing the conduct through a moral lens: does this government-sanctioned conduct reflect the moral values of the US and all it has stood for since its founding? The answer for them is simple. Irrespective of whether torture yields reliable intelligence that potentially saves lives, the use of torture, in any of its forms, is as shortsighted as it is injudicious: even if under some hyper-technicality it may be considered legal — thus affording those involved in the torturing chain a plausible justification —  it is morally repugnant.

Maybe Haspel would not be under such heavy scrutiny had she not also been involved in destroying 92 tapes of an Al-Qaeda suspect being interrogated with enhanced techniques at a CIA detention facility. It was believed that the tapes are of two suspects being tortured, and not just one. Taking Haspel at her word that the tapes are of only one suspect being interrogated, just imagine the physical labor that went into the interrogation.

Haspel testified that she destroyed the tapes upon orders. There is a caveat. During her Senate confirmation testimony it seemed clear she was aware that there was no authorization from the then-CIA Director to destroy the tapes, and that her superior Jose A. Rodriguez, Jr., was instructing her to destroy the tapes. Rodriguez was making the decision, and effectively, telling her that he would assume responsibility. When pressed on her I was only following orders response, she explained that the tapes were destroyed to keep the identities of her colleagues involved in the torture from being revealed should the tapes be leaked. As we will see, this seemingly plausible explanation lacks candor.

When asked whether she would follow the law, she confirmed, un-hesitantly, if not cavalierly, that “we [the CIA] followed the law then. We follow the law today.”

So, there you have it. Haspel followed instructions and adhered to the law. All is good; no need to look in the rear-view mirror.

Then why is Haspel being sweated for what was considered legal (at least in the eyes of the White House) at the time she was covering the CIA’s extraordinary rendition program? She was a loyal, patriotic, law-abiding, order-following foot soldier in the “war on terror” when the US (as a result of the 9/11 attacks on its soil) was shaken to its core – so much that it misguidedly attacked Iraq based on the false premise that it had weapons of mass destruction (another sad and sordid story).

Even before I heard Haspel’s statement and testimony before the US Senate Select Committee on Intelligence, her nomination troubled me. My concern is not whether she should have been nominated or whether she should be confirmed, but whether it is fair to judge her by today’s standard and in today’s context for following instructions and acting within the law as was told to her at a time of great fear and uncertainty? 

When looking at her activities in the context in which they occurred and based on what she was told, it seems reasonably clear that, in her mind, what she did was legally permissible. I am not sure about the legality bit, but she and the CIA were relying on a legal opinion that carried the imprimatur of the White House (more about this below). But when looking at her activities through a moral lens, there’s no escaping the conclusion that she unconditionally embraced the use of torture, however dressed-up.

Herein lies my dilemma. Haspel may have acted within the technical contours of the law (though a legal memorandum is not law), but well outside the moral boundaries that have been the bedrock of US governance, even though the US occasionally falls short in abiding by the moral standards it has set for itself – the standards it fondly claims to export beyond its shores to less fortunate and obviously less progressive States (oh, what burdens the US must bear).

As I struggle to resolve this legality v. morality dilemma, wanting to give Haspel a fair shake, I keep thinking of two film clips.

The first is from the film A Few Good Men, where Colonel Nathan R. Jessup (Jack Nicholson) tells Lieutenant Daniel Kaffee (Tom Cruise) that he cannot handle the truth (see the movie clip here):

– You want answers?!

– I want the truth.

– You can’t handle the truth!

Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives. You don’t want the truth. Because deep down, in places you don’t talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty. We use these words as the backbone to a life spent defending something. You use ‘em as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, then questions the manner in which I provide it. I’d prefer you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don’t give a damn what you think you’re entitled to.

Col. Jessup may be right. There is dirty work that needs to be done that benefits the greater good –  work that allows us to feel safer at night, work that allows us to enjoy our constitutional and civil rights. Yet at the same time, we criticize and blame those who are in the trenches doing this dirty work, doing what it takes to keep us safe and secure.

Haspel seems to be in this situation. Post 9/11, the US public wanted the CIA and other operatives in the field to capture and interrogate suspects or known terrorists (and probably whoever else could lead them to tracking down those most wanted) – means and methods be damned. The public wanted Haspel and others to apply their dark craft as they saw fit to ensure that those responsible for 9/11 and anyone else plotting for the next 9/11 would be captured, detained, and squeezed for any useful information. Until it became known what extraordinary rendition really entailed, and before the grotesqueness of Abu Ghraib was revealed, not a whole lot of thought was given to the techniques used to interrogate the captured “unlawful combatants.”

Many in the US, no doubt, could not have imagined that their government, the United States of America, with its high moral values and standards, could possibly institute a policy of torture, of inhumane and degrading treatment of prisoners. A bit naïve, considering that the US, especially its intelligence services, have a history of conducting dirty operations and employing covert and illicit techniques the globe over. Others, if they were surprised, were pleased to hear that the US was taking the fight to the enemy, using the same sort of barbarous and primitive tactics used against it. Understandably, they must be at a loss to comprehend why Haspel is being picked-on and dragged through the mud for doing her job in making America safe (again), when we should be singing her praises for overseeing the interrogation of terrorists. And by the way, waterboarding is not so bad.

The other film clip that comes to my mind is from a documentary on the My Lai Massacre, Four Hours in My Lai: Anatomy of a massacre. In 1968, a company of the US army, commanded by Lt. William Calley Jr. massacred at least 504 unarmed civilians – mostly women, children, and elderly in the South Vietnamese village of My Lai. Lt. Calley gave the order to kill everyone. His men obeyed. An order is an order and they were in a war. At least one soldier found the moral conviction and courage to stand his ground, refusing to open fire on helpless civilians. In the documentary, we meet Harry Stanley. He comes across as a simple and uncomplicated man – someone who is not terribly polished or sophisticated and certainly not a graduate of an Officer Candidate School like Lt. Calley. Over the years I find myself subconsciously reflecting on his immense courage and humane explanation when asked why he disobeyed the order:

Lt. Calley ordered certain people to shoot these people and I was one of them. And I refused and he told me that he was going to have me a court-martial when we got back to base camp, and I told him what was on my mind at the time. Ordering me to shoot down innocent people, that’s not an order, that’s, that’s craziness to me, you know. And so I don’t feel like I have to obey that….  And if you want to court-martial me, you do that. If you can get away with it. I feel like this, it was horrible, you know, you know, just a terrible thing to be going on, and American boys doing this, you know. And I feel like I’m a red-blooded American boy just like any of the rest of the guys that was there, you know. And to see that, I’m talking about black or white, you know, black or white guys doing this, you know, it didn’t make any difference. I’m saying, it just seemed like a horrible thing. I’m talking we all came from the same place. And I know they all had to have the same values that I had somewhere along the line. If they didn’t get it in school, they had to get it in a religion or church or some place…. If you didn’t go to school, you could pick it up from a stranger, it’s just simple. But then to go and do something like this, it’s, it’s immoral to me. That’s just the way I feel about it (emphasis added).

Here was this ordinary individual – thrust into an extraordinary situation – who did not allow circumstances or an order from his commanding officer to sway him from abandoning his moral convictions. His eloquent explanation of how it should have been obvious to all that killing innocent and defenseless civilians is as perceptive as it is sublime. I often think of his words when trying to make sense of someone’s conduct that, by ordinary standards (even when factoring in context), is patently illicit and immoral.

Haspel should have picked up from her parents, or school, or church, or some place, that the methods used to extract information from renditioned detainees were not only extraordinary but inhumane. Would she, her superiors, the military elite, or the US President find it acceptable for US military personnel, if captured, to be treated in this fashion? Of course not. Then how is it that Haspel thinks that at the time she was overseeing torture (as if we have since had the dawning of the age of Aquarius), the methods used and the human suffering that resulted was both legal and consistent with American moral values?

Relying on the legal memorandum prepared by John Yoo (Deputy Assistant Attorney General of the US) and signed by Assistant Attorney General Jay S. Bybee (Head of the Office of Legal Counsel of the US Justice Department) in August 2002 (aka the Torture Memorandum), she claims that she was following the law when she was overseeing the torturing program as CIA Station Chief. This explanation is hardly acceptable.

Haspel was told that the interrogation techniques did not amount to torture because, as the Torture Memorandum concludes, under the Convention Against Torture and Other Inhumane and Degrading Treatment or Punishment (CAT), as implemented under US law, to constitute torture the “severe pain” inflicted must necessarily be pain associated with “death, organ failure, or serious impairment of body functions” (see pp. 1, 6). She was not a lawyer. Who was she to question the eminent legal scholars assembled to write this legal memorandum justifying interrogation techniques that are plainly designed to inflict what can only be described as torture?

But then, in July 2001, before 9/11 and the Torture Memorandum, the UN Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment – an authoritative voice on the interpretation of the CAT – concluded that some forms of conduct that are not necessarily associated with death, organ failure, or serious impairment of bodily functions (such as intimidation, enforced disappearances, etc.) can constitute torture. This was publicly available and undeniably known by those involved in drafting the Torture Memorandum, yet consciously and conveniently ignored.

The Torture Memorandum was not law and therefore did not make the use of the so-called enhanced interrogation techniques legal. It was the legal opinion of the US Justice Department, whose remit was to find legal justification for the use of torturous interrogation techniques against the renditioned detainees and unlawful combatants. Vice President Dick Cheney was a big proponent of torture, claiming that it works and that it has yielded good intelligence.

And let’s not kid ourselves, the legal experts involved in the drafting of the Torture Memorandum were not asked to provide a balanced memorandum on what the law was at the time (not that it has changed since then), but rather, to put the law on the proverbial Procrustean bed to provide legitimacy to what everyone would have known amounted to torture and thus prohibited by the Geneva Conventions, the CAT, and US domestic law – think of Harry Stanley’s words on why his mates should have disobeyed a clearly illegal order and should not have opened fire on unarmed civilians.

In July 2009 the US Office of Professional Responsibility (or “OPR” – an office within the US Justice Department responsible for investigating allegations of misconduct involving Department attorneys) concluded after a five-year inquiry that Bybee and Yoo committed professional misconduct when they “violated [their] duty to exercise independent legal judgment and render thorough, objective, and candid legal advice” by providing legal advice that was contrary to both US federal and international law (see pp. 11, 251-57). According to the Washington Post, the OPR’s draft report recommended that Bybee and Yoo be referred to their respective bar associations to determine whether further disciplinary action and possible disbarment was warranted. David Margolis – a former Justice Department Attorney General who has been described as a “brash and revered prosecutor” who “helped the Justice Department navigate through some of its most difficult chapters” – disagreed, finding that, while Bybee and Yoo used “poor judgment,” they did not “knowingly or recklessly provide incorrect legal advice or … provide advice in bad faith.”(p. 64) (See also Philippe Sands QC, Torture Team: The Responsibility of Lawyers for Abusive Interrogation, 9 Melb. J. Int. L. 265-380 (2008), inquiring into the history behind the Torture Memo and exposing the role of the role of senior lawyers in the US administration lawyers in drafting the memo and the extent of their responsibility.)

Haspel would have known about the internal debates on the use of tortuous techniques. Given her position, her access to information, and the environment in which she operated, she would have known that what she was being asked to supervise was legally suspect. Of course, the Torture Memorandum would be her get-out-of-jail card should her acts ever come into question.

So, should Haspel be given a pass? Should she be judged more leniently because of the environment and context in which she faithfully carried out orders – orders which she was told were lawful?

I was inclined to say yes. She did not go rogue; she followed orders and adhered to what was considered lawful at the time. But what has been gnawing at me is her answers to one question which was put to her twice during her testimony. On both occasions she was evasive. She also made one remark that I found odiously misleading. When asked whether she believes that the interrogation program was consistent with American values, she indicated that now, the US has decided to hold itself to a stricter, higher moral standard:

Senator, as we sit here today, and with some distance between us and the events of 9/11, the Congress and indeed our nation have had an opportunity to have a debate about the interrogation standards we want to use as the United States of America. We have decided to hold ourselves to a stricter moral standard. For [the Department of Defense] that is defined in the army field manual.

I support the United States holding itself to that stricter moral standard and I support the army field manual…. My parents gave me a very strong moral compass. I support the higher moral standard that this country has decided to hold itself to.

To suggest that the US is now holding itself to a stricter moral standard than when she was overseeing the torturing of detainees is mendacious. The moral standard did not change; it was just ignored by the then-US administration that misguidedly believed that torture is a virtuous truth-seeking tool and resorted to tortuous legal reasoning in claiming that it was sanctioned by US law and consistent with international norms.

When you dissect her words, which unquestionably were well chosen (and most likely well-rehearsed in front of a mirror), she seems to be saying that even with what we know now, and even after the damage the extraordinary rendition program has caused to the US’s reputation and standing, she would do it all over again. Maybe I am reading too much into her answers, but I got the impression that she finds it regrettable that, if confirmed as the next CIA Director, this newfangled “stricter” and “higher” moral standard would preclude her from ordering her subordinates to apply the enhanced interrogation methods she supervised over (and assuredly thought, and likely continues to think, achieve reliable results – otherwise why would she have used them for so many years).

This sounds harsh and unfair to Haspel. On 14 May 2018, five days after her first day of testimony which I have quoted from, she sent a letter to Senator Mark Warner, Vice Chairman to the Select Committee on Intelligence, to clarify her position on the future use of torture if ordered. Senator Warner was the one who pressed her a second time to answer the question when it her first attempt was a non-response response. No doubt, she caught the drift after testifying that her answers were no comforting balm to Senator Warner and his colleagues who wanted an unambiguous, unembellished, unrehearsed answer to a very simple but vital question. So, perhaps after seeking advice from her colleagues and her supporters she crafted a letter wherein she explains:

As Director, I would refuse to undertake any proposed activity contrary to my moral and ethical values…

While I won’t condemn those that made these hard calls, and I have noted the valuable intelligence collected, the program ultimately did damage to our officers and our standing in the world.

With the benefit of hindsight and my experience as a senior Agency leader, the enhanced interrogation program is not one the CIA should have undertaken. The United States must be an example to the rest of the world, and I support that.

Where were her moral and ethical values when she was authorizing torture during the interrogations she was overseeing? In her testimony, she alluded to the US having a lower, lax moral standard – one that is now higher and stricter. Was her moral standard as malleable as the US’s moral standard she would have us believe? And what took her so long to learn the “hard lessons’ she claims she learned since 9/11? The use of torture was prohibited well before 9/11. The Torture Memorandum was a fig leaf to give legal cover to her and colleagues. When did these lessons become so obvious to her and when did she alert her superiors? Maybe it is there in the classified information she refuses to declassify as Acting CIA Director. But if something was there, why not come clean during the testimony and tell the Committee and the public that as soon as she realized that these inhumane and repugnant enhanced interrogation techniques were both immoral and ineffectual, she notified here superiors, and there is proof in the CIA classified archives. Maybe she said this in closed session, but I doubt it. She would not be writing this letter to talk about lessons learned, breaking away from past practices and of her high moral values (which were nowhere to be found when it counted most).

The letter hits all the right notes. It is well crafted, with the appropriate tone and language to correct what were some obvious flaws to her spontaneous answers during her testimony. While I appreciate the gesture, the letter is self-serving. What else could she say post-testimony and pre-confirmation if she wants to be the next CIA Director? She had her chance to provide these answers when she was testifying. What prevented her? Nothing. With the benefit of hindsight, she now wants to ameliorate her answers to a noticeably frustrated Senator Warner, who labored to get her to be forthcoming in response to his questions. Too little too late. The letter changes noting.

And there is the issue of destroying the tapes – the evidence of her handiwork.

I can almost buy her explanation. Almost. But the tapes were around for over three years; what was the rush to get rid of them? Legal experts were consulted. Destroying such evidence would clearly cause a stink if done without proper authorization. She is old enough to remember the Iran-Contra affair and the destruction of evidence by Lt. Col. Oliver North that caused an uproar.

And oh, coincidence of coincidences, Haspel’s supervisor (Jose A. Rodriguez, Jr.) – the one that ordered her to destroy the tapes – is the same Rodriguez prominently featured in the Iran-Contra affair. Haspel knew that Rodriguez had not authorized the destruction of the tapes. In fact, her testimony revealed that she learned from none other than Rodriguez that he did not even inform the CIA Director that he would have the tapes destroyed. Yet, being the good foot-soldier that she is, she smartly saluted and obeyed the order. Evidence destroyed. Curiously, I wonder if, as CIA Director, she would countenance her subordinates, such as Rodriguez and Haspel, destroying CIA documents (incriminating or otherwise) at their discretion without her authorization or knowledge?

Here again she has a handy explanation: her superior has taken full responsibility for the order.

Since when are the physical perpetrators absolved of their actions when their superior, who ordered the physical perpetrator to act, informs them not to worry about any legal consequences because he or she will accept responsibility and take the heat?

Haspel may have dodged a legal bullet on whether she acted legally when she destroyed the tapes. But is this not yet another moral test she failed?

With what we know (and no doubt there is more) is it fair to deny Haspel the privilege to serve as the next CIA Director, especially considering her qualifications and faithful service to the US?

Yes, it is.

The US should not have as its CIA Director someone who oversaw torture – irrespective of the circumstances or context. Unquestionably Haspel served her country well. She did what was asked of her. She acted within the legal parameters framed by the White House legal experts. She did her bit un-hesitantly and with distinction. But she is damaged goods – a casualty of the war on terror, or more appropriately, collateral damage.

The CIA’s post 9/11 rendition, detention, and interrogation program has left an indelible stain on the US. Haspel, in part because of her nomination and confirmation testimony, is effectively the poster child and a reminder of this ill-conceived, inhumane, and illegal program. The US must now come to terms with its past and move forward by distancing itself from those dark events and those most associated with them.

I am sure Haspel is a fine person, a patriotic American, and an extraordinary intelligence expert that, if confirmed, would be a competent CIA Director. But, and this is a big but, she seems to lack the sort of moral compass and intestinal fortitude that is ever so vital in directing the CIA during this peculiar period in the US’s history under the current US administration, headed by President Donald J. Trump, who, unabashedly, publicly expresses his approval for the use of waterboarding and other enhanced interrogation techniques.

Would Haspel refuse to carry out an order to torture were she presented by President Trump’s minions with a similar legal memorandum, such as the Torture Memorandum, justifying interrogation techniques that amount to torture? She claims no, but who is to tell?

Somehow, I do not see Haspel going “eyeball-to-eyeball” with President Trump quoting Martin Luther “Here I stand; I can do no other,” as then-Acting Attorney General James Comey responded to President George W. Bush when he refused to give the US Justice Department’s blessings to reauthorize the National Security Administration’s (NSA) warrantless wire-tapping program, which he considered unconstitutional. Comey stood his ground, even though Vice President Richard Cheney warned Comey that his refusal  to the reauthorization of the warrantless wire-tapping of US citizens and residents would result in: “[t]housands of people [being killed] because of what [he was] doing.” Comey demonstrated character, not just guts. This is what is required of those holding such positions that require speaking truth to power, especially if the power is in the hands of the US President, and most particularly, when the US President is Donald J. Trump.

Haspel has demonstrated a penchant for following orders – even when her judgment and moral values should have told her otherwise. Not good.1

Torture under the CAT and US law

CAT, Article 1:

“[T]he term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

US Constitution, Eighth Amendment 

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

18 U.S.C. § 2340 (The US “Torture Act”)

“‘[T]orture’ means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.”

The US has signed and ratified the four Conventions of 1949 and Protocol III of 2005, but has not ratified the two protocols of 1977, though it has signed them.

In Hamdan v. Rumsfeld, 548 U. S. 557 (2006), the US Supreme Court held that:

[The Uniform Code of Military Justice] conditions the President’s use of military commissions on compliance not only with the American common law of war, but also with the rest of the UCMJ itself, insofar as applicable, and with “the rules and precepts of the law of nations,” Quinn, 317 U. S., at 28 – including, inter alia, the four Geneva Conventions signed in 1949.

The Geneva Conventions of 1949, Common Article 3

“Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

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  1. On 16 April 2018, the Senate Intelligence Committee voted 10-5 behind closed doors, to advance Gina Haspel’s nomination as President Trump’s pick for CIA director. The Senate may now vote on her confirmation – as early as 17 April 2018.  This would require Senators’ cooperation to waive procedural hurdles in order to move to a quick vote.  Unlikely when she faces opposition from the majority of Democrats.[]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including pre-trial, trial, and appellate advocacy.

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