An Illegal, Unconstitutional War? Reality Check (Amended 5/25/12)

Some libertarians, misguided by Ron Paul, among several false leaders and several bad leaders, habitually, even frequently denounce the war in Afghanistan and the war of liberation of Iraq as “illegal”and “unconstitutional.” Such statements meet with little overt contradiction because the public has grown tired of both wars, the one that we left behind in Iraq and the one that’s more or less continuing in Afghanistan. These wars lasted too long for the American national ADD. In addition much of public opinion considers the charges of illegality and of unconstitutionality thoroughly irrelevant. Many more don’t even understand such charges. I think I understand well the charge of unconstitutionality and I consider it important. I care only a little about the charge of illegality. It’s too vague to be important and too absurd on its face to merit much consideration. Yet, it may be a conceptual step to the charge of unconstitutionality, the one that merits attention.

Right now, I cannot perform the research “lite” but nevertheless time consuming required to deal with the constitutionality of the former war against Saddam Hussein. I can however try to throw some light on the constitutionality of the on-going war in Afghanistan against the Taliban barbarians and against their allies.

Note on 5/25/12:  My Ron Paul devoted follower- in- residence, Brandon Christensen, insisted several times in comments to this essay that Congressman Paul never called the Afghan war illegal or unconstitutional. Rather than review several tedious hours of the presidential debates where I heard Paul say that, I insert this warning here. If you believe Christensen, you may want to read what follows as a free-floating essay on the constitutionality of that war. Incidentally, Christensen himself, the loyal Paulista, has not responded to my invitation to declare whether he, Christensen, thinks the war is legal and constitutional. What he thinks is a secret.

Before I begin, let me say that I recognize that the war in Afghanistan is winding down. It will end almost irrespective of anything anyone does except in the unlikely case another massive attack against us originates there. I am sorry that war is ending the way it’s ending. I mean, with the democratic world displaying its lack of resolve for all believers in mass murder to see. I also think there is a fair chance that the Taliban savages will take over the country anew after we leave. Accordingly, it’s possible that again and again Afghanistan will serve as a haven for violent jihadists who have wet-dreams about assassinating large numbers of infidels. Incidentally, if you study the issue even a little you will soon discover – or re-discover – that “infidels” deserving of assassination by the violent jihadist include many more Muslims than non-Muslims of any kind. On May 19th 2012, the victims were 90+ members of the Yemenite armed forces. Periodically, the victims are the subdued Shiite Muslims in Pakistan; earlier they were even Iraqi Shiite Muslims who were themselves busy trying to kill Americans.

My wife’s share and my share of the cost of the ten-year war, together, averaged $400 annually so far. That’s about as much as I spent on tobacco when I was still smoking. It’s less than we currently spend on wine, and we have humble tastes and my wife hardly drinks any. It’s not much money to keep reminding the many mean, America-hating people in the world that we area a tough nut to crack.

Yes, of course, I don’t forget the 3,000 brave Americans who died in Afghanistan, nor the hundreds of NATO allies. The Americans died for a noble and valuable cause, to establish the notion that killing Americans and protecting those who kill Americans bring pain and suffering. Of course, every death is one too many but, if you believe this literally you have to surrender to the worst barbarity. It’s a kind of moral blackmail for those who use it. And, of course, I find despicable the crocodile tears of secret pacifists who call the Afghan war illegal. That just war has cost a ten times fewer American lives in ten years than traffic accidents cost in a single year. Yet, anti-war types never never go after traffic mortality although it’s obvious to any thinking person that many traffic deaths are avoidable. ( Driver’s license canceled on first DUI conviction; five years in jail on the second.) Anti-war persons of all feathers believe that it it’s no big deal if Americans kill Americans in a drunken stupor as long as the killers are at the wheel of an automobile. Some moral compass!

The charge of unconstitutionality of the Afghanistan war must depend on what the US Constitution has to say about war. Here it is, below in its entirety. It’s amazingly brief:

ARTICLE 1, SECTION 8The Congress shall have Power:To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…. ARTICLE II, SECTION 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States when called into actual service of the United State

In addition, the War Powers Resolution of 1973 limits the ability of the President to wage war without Congressional assent. By doing so, of course, the resolution recognizes de facto the right of the President to wage war of his own accord to some extent. This ordinary act of Congress obviously does not modify any part of the Constitution.

There are several precedents of presidential autonomy in matters of war. Here is one: In 1801, President Thomas Jefferson attacked the Barbary Pirates (of Libya!) and kicked their asses. What happened is that after the United States separated from the UK, the pirates figured the US as a state was too far away and too small to do anything about attacks against its merchantmen and looting and slaving taking place in the Med. Pres. Jefferson became annoyed.

“Jefferson sent a small force to the area to protect American ships and citizens against potential aggression, but insisted that he was ‘unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.'” He told Congress: “I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight.”[14] Although Congress never voted on a formal declaration of war, they did authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.” (Wikipedia)

Pres. Jefferson thus struck the pirate states without benefit of a formal declaration of war by Congress. He must have thought that when other people shoot at you, you shoot back, that you don’t need permission to do so. Congress did nothing to stop Jefferson. It seems Congress thought that Jefferson knew pretty well what the Constitution meant. I am wondering if Congressman Ron Paul, or any of his followers, would call the war against the Barbary pirates “unconstitutional.” I am not just asking for the sake of asking. I would like to see any of Paul’s followers answer this question here in writing.

The fact that the War Powers Act and the actions of several respected presidents show that the American executive may wage war with the passive acquiescence of Congress however does not mean that the War of Afghanistan was started that way

What happened is that President Clinton several time threatened the Taliban regime militarily if it did not stop hosting and helping Al Qaida. The fact is that President Clinton acted on his military threat. The feeble Clintonian military actions in Afghanistan however proved insufficient to motivate the Taliban regime to interfere with Al Qaida while it was preparing the 9/11 massacre. Thus, the American response to 9/11 was not written on a blank page. It was not a kind of Pearl Harbor in reverse. (I think libertarian commentaries imply something like that.) Even the semi-literate Taliban rulers had all the information at their disposal to know that a state of war existed between them and the US. That was several years before 9/11/2001.

Seven days after the 9/11 attack, a joint resolution of Congress gave the President the power to use all necessary force against those he determined planned, authorized or aided the 9/11 attack as well as those who harbored those who committed the attack. (This wording is paraphrased from Public Law 107-40, 107th Congress of the United States, first session; September 18th 2001. If you don’t like it, give your own wording right here, please.)

The joint resolution that begun the present war in Afghanistan passed by 420 to 1 in the House of Representatives. It passed by 98 to 0 (zero) in the Senate.

I don’t know how any war could be more legal than this.

Now, if you want to argue that the omission of the sacred words, “declare” and “war” is enough to make the war unconstitutional, go ahead, do it openly.

Libertarian leaders who say the Afghan war is unconstitutional or illegal, and first and foremost Congressman Ron Paul, don’t seem to know what they are talking about. Or else, they are closet pacifists who don’t wish to pay the political price of their moral convictions, ethical cowards, if you will.

If there is some sophisticated constitutional argument to the contrary that escapes me, I would be glad to publish it on this blog integrally and repeatedly. I will not treat especially well however attempts to change the subject under the pretext of picking up this challenge.

About Jacques Delacroix

I am a sociologist, a short-story writer, and a blogger (Facts Matter and Notes On Liberty) in Santa Cruz, California.
This entry was posted in Current Events, Socio-Political Essays and tagged , , , , , , , . Bookmark the permalink.

24 Responses to An Illegal, Unconstitutional War? Reality Check (Amended 5/25/12)

  1. Do you have any evidence of Ron Paul arguing that the war in Afghanistan is illegal?

    • jacquesdelacroix says:

      Sure thing. He said it several times during the presidential debate. That’s not a report, that’s what I heard.

      Now, if you want to take the tack that I am sadly mistaken, that he never said it because he does not believe the Afghan war is either illegal or unconstitutional, I will probably be glad to correct myself. I would be even more interested if you came out and said it.

      • Sure thing. He said it several times during the presidential debate. That’s not a report, that’s what I heard.

        Oh good.

        I was taught to follow the “barrel of apples rule”. The fact that you are hearing Ron Paul’s voice in your head tells me I need to ask for a new barrel…

      • jacquesdelacroix says:

        Brandon: Barrel of apples rule is a good rule. You were taught right.

        Tech note: It means that if someone says something false or stupid, anything else he says is suspect. This is not a court of law; life is short; we can take days and months to decide who is worth listening to. As far as I know, I, Jacques Delacroix enunciated first the barrel of apples rule on the Internet.

        What do want? Don’t play games. False memories are possible, even auditory hallucinations. What would you have me do? Should I spend hours reviewing all Republican presidential debate tapes simply because you affirmed that Ron Paul never called the Afghan war unconstitutional (contrary to my memory)?

        I have a better idea: Why don’t you name yourself clearly and affirm your credentials as a Paulista and simply affirm that Congressman Paul never called the Afghan war unconstitutional. I will not argue with you. I will not dispute your credentials. I will simply interweave your statement with the beginning of my essay. We will then let the reader judge whether I am dealing in red herrings.

        If you are not willing to take this obvious step, you are just quibbling.

  2. It means that if someone says something false or stupid, anything else he says is suspect.

    Yes, and keep this in mind folks…

    Should I spend hours reviewing all Republican presidential debate tapes simply because you affirmed that Ron Paul never called the Afghan war unconstitutional (contrary to my memory)?

    Hours? Of course not, but you should be able to find some writings (and a link) to some of Ron Paul’s writings on the subject. He is a public figure after all.

    The reason I am so adamant about you finding some sort of proof to back up your claim that Ron Paul has called the debacle in Afghanistan “unconstitutional” is because your whole argument seems to be laden with suspect history and legal theory. To make matters worse, you have applied what I believe to be suspect historical facts and legal theory to somebody else’s argument.

    Providing some sort of proof to back up your assertion about Ron Paul’s position will help to shore up your argument, and once I get a definitive answer from you on this question we can then keep going.

    Trust me Dr. J, there is nothing I want more than to give you a good beating in front of everybody, but first I need to make sure that I am still punching above my weight.

    • jacquesdelacroix says:

      Brandon: As I said, this discussion is of little importance. What matters is whether Ron Paul said that the Afghan war is unconstitutional. If you affirm clearly, for the record, that he said no such thing, I will be glad to correct my essay accordingly.

      Completely aside from this, you are free of course to pursue the issue of whether I am credible or not. Don’t try to make readers believe that one issue is identical to the other.

      Does Ron Paul consider the war in Afghanistan constitutional?

      And, by thee way, do you, a faithful Paul follower, think it is constitutional?

      • What matters is whether Ron Paul said that the Afghan war is unconstitutional. If you affirm clearly, for the record, that he said no such thing, I will be glad to correct my essay accordingly.

        No no no, Dr. J, that’s not how it works. You said that Ron Paul claimed the Afghan War is illegal, so the impetus is on you to provide proof of this.

        Your whole argument is based upon the premise that Ron Paul has claimed that the Afghan War is illegal. Is asking for a little bit of proof of this so much to ask for? Don’t run away now, things are just getting interesting Dr. J!

      • jacquesdelacroix says:

        Brandon: Your attempt to tell me – again – how things work failed – again. Instead of inflicting on myself the absurd burden you propose with a straight face, I amended the original essay to register your allegation that Ron Paul never said it. (As, he never said that there is a blockade around Iran, for example).

  3. If that is the best you can do I have no other choice than to consider this whole attack nothing but a rotten barrel of apples. I want a new barrel, Dr. J, but I realize that you are a terrible merchant and won’t provide me with a new one any time soon (the marketplace will punish you for your dishonesty in the long run).

    The burden of proof lies with you to provide some sort of evidence that Ron Paul has argued that the war in Afghanistan is unconstitutional. However, because I am such a nice guy, I will provide our readers with the beat down they are no doubt waiting for.

    On September 14th, 2001, prior to his vote authorizing then-President Bush to use force in Afghanistan, Congressman Paul took to the House floor to deliver this speech:

    Mr, Speaker,

    Sadly we find ourselves today dealing with our responsibility to provide national security under the most difficult of circumstances.

    To declare war against a group that is not a country makes the clear declaration of war more complex.

    The best tool the framers of the Constitution provided under these circumstances was the power of Congress to grant letters of marque and reprisals, in order to narrow the retaliation to only the guilty parties. The complexity of the issue, the vagueness of the enemy, and the political pressure to respond immediately limits our choices. The proposed resolution is the only option we’re offered and doing nothing is unthinkable.

    There are a couple of serious points I’d like to make.

    For the critics of our policy of foreign interventionism in the affairs of others the attack on New York and Washington was not a surprise and many have warned of its inevitability.

    It so far has been inappropriate to ask why the U.S. was the target and not some other western country. But for us to pursue a war against our enemies it’s crucial to understand why we were attacked, which then will tell us by whom we were attacked.

    Without this knowledge, striking out at six or eight or even ten different countries could well expand this war of which we wanted no part. Without defining the enemy there is no way to know our precise goal nor to know when the war is over. Inadvertent or casual acceptance of civilian deaths by us as part of this war I’m certain will prolong the agony and increase the chances of even more American casualties. We must guard against this if at all possible.

    Too often over the last several decades we have supported both sides of many wars only to find ourselves needlessly entrenched in conflicts unrelated to our national security. It is not unheard of that the weapons and support we send to foreign nations have ended up being used against us. The current crisis may well be another example of such a mishap.

    Although we now must fight to preserve our national security we should not forget that the founders of this great nation advised that for our own sake we should stay out of entangling alliances and the affairs of other nations.

    We are placing tremendous trust in our president to pursue our enemies as our commander-in-chief but Congress must remain vigilant as to not allow our civil liberties here at home to be eroded. The temptation will be great to sacrifice our freedoms for what may seem to be more security. We must resist this temptation.

    Mr. Speaker we must rally behind our president, pray for him to make wise decisions, and hope that this crisis is resolved a lot sooner than is now anticipated.

    The emphasis is mine. As I mentioned earlier, I suspected that Dr. J’s historical understanding of the American legal system is murky at best, largely because of his equally murky statements claiming that Congressman Paul has said the Afghan war is unconstitutional (again, the burden of proof should lay with him).

    To illustrate my point, Dr. J writes:

    President Thomas Jefferson attacked the Barbary Pirates (of Libya!) and kicked their asses. […] Pres. Jefferson became annoyed. He struck the pirate states without benefit of any declaration of war. He must have thought that when other people shoot at you, you shoot back, that you don’t need permission. Congress did nothing to stop Jefferson. It seems Congress thought that Jefferson knew pretty well what the Constitution meant.

    You have your facts wrong (again). Jefferson did not strike the polities without any authorization from Congress. That would have been a most foolish precedent, and Jefferson knew it. This is why Jefferson went to the Congress and requested that they issue letters of marque and reprisal to hunt down and attack the polities responsible for the piracy in the Mediterranean.

    Congressman Paul did not state that the war in Afghanistan was unconstitutional (unlike the foolish war in Iraq), but he did warn that the proposal for undertaking the operation in Afghanistan was too vague, and that because of the vagueness of the proposal there would be prolonged conflict. Here we are over a decade later: the longest war in US history is still not coming to an end anytime soon. The fact that Ron Paul predicted that the ambiguous policy directive endorsed by the Congress would lead to the spread of the conflict to other states should also speak volumes about the theoretical strength underlying his positions concerning political science.

    In order to attack our enemies and defeat them soundly, all while minimizing violence and inevitable misunderstanding, Congressman Paul pleaded with his colleagues in the House to hearken back to a legal precedent that began with President Jefferson’s tenure in the executive office: issue letters of marque and reprisal and pay mercenaries to get the job done as quickly as possible.

    Now, I know what Dr J has tried to do here: he has tried to illustrate that the same way we went into Afghanistan is the same way we went into Iraq. “See!” he’ll exclaim in triumph. The Iraqi invasion is constitutional.

    This is disgusting, for one thing, and for another it’s still illogical and wrong. Just because the US bungled the response to 9/11 by invading Afghanistan with no clear policy directives does not mean that 1) it is a good idea to do it all over again and 2) that because the wording is the same in both the Iraqi and Afghan examples that it somehow justifies the legality of the invasion and occupation of Iraq.

    Readers: can anybody tell me why this might be the case?

    • jacquesdelacroix says:

      Brandon: Thank you, this is all useful.


      You are wrong on Jefferson and the First Barbary War Your error provided a teaching moment so, I included a citation to correct your mistake and that of others who attend the same church as you do.

      I did not use Afghanistan to imply anything about the war against Saddam Hussein. When I am ready, I will deal with that one. By the way, did you say whether that war was “illegal” or “unconstitutional”?

      Next, are you doing to explain “letter of marque”? (I ask because you use the term in your comment.

      • Sure.

        It’s an old concept that fell out fashion after the Napoleonic Wars and with the advent of the rise of the nation-state. Basically, a parliamentary body can direct (and fund) the executive branch to pay mercenaries a specific amount of money to undertake a specific mission with a specific set of instructions.

        So if Congress had adapted Congressman Paul’s proposal to deal with al-Qaeda, then a select group of mercenaries would have hunted down bin Laden. No nation-building. No stupid wars against other states. No prolonged conflict.

      • jacquesdelacroix says:

        You are a confused. The letter of marque does not imply a mercenary relationship. In fact, it’s the alternative tot he use of mercenaries ( who must be be paid). The letter of marque creates corsairs, privateers, that is legal pirates who are authorized to pay themselves from the goods of the king’s enemies they capture.

        What would a letter of marque, dear to mainstream libertarians – do against bin Laden? Would there be free enterprise warriors taking his old turbans as booty? His slippers? His black and white TV? His Kalachnikov?

        A “select group” of mercenaries? Why so large a number? Why not just send Captain America?

        Silliness kills if there is enough of it. The victims, however are not the intended targets.

      • Mercenaries aren’t legal pirates?

        This is getting petty, but I will remind readers that bin Laden was part of a very rich family who was often at odds with the Saudi family. When the US put troops in Saudi Arabia to protect the Saudi family, this pissed off bin Laden and sucked the United States into an internal conflict between two rival factions.

        Also, the fact that Clinton was involved in previous fights with al-Qaeda tells us that the 9/11 attacks did not come out of nowhere or simply because Muslims hate topless bars.

        You are trying too hard with Jefferson as well. Why don’t you read what Wikipedia (your source, not mine) actually says about Jefferson’s actions:

        they [Congress] did authorize the President to instruct the commanders of armed American vessels [i.e. not the Navy] to seize all vessels and goods of the Pasha of Tripoli.

        Hello?!? Is anybody home?!? Look at what you just wrote!!!

        The letter of marque creates corsairs, privateers, that is legal pirates who are authorized to pay themselves from the goods of the king’s enemies they capture.

        Congress did authorize Jefferson to send some US Navy ships to the region, but they did nothing unless they were baited into a fight (which happened often). At the end of hostilities, the US government also ended up paying $60,000 for the release of prisoners, so direct US involvement was even more expensive and stupid than I first thought.

        This is just one of many reasons why I don’t even respect conservative arguments anymore. Instead of putting together a logical or coherent argument, conservatives rely on name-calling, false facts, and the ignorance of others to enhance their arguments.

      • jacquesdelacroix says:

        Brandon: You are all over the place, difficult to follow.

        Letter of marque create legal pirates, people who don’t have to be paid because they pay themselves by keeping the captured property of the king’s enemies. (Also, classically the property of the subject of the king’s enemies.) Mercenaries, on the other hand, are paid by the king.

        Recipients of letter of marque and mercenaries have nothing in common except that they are no draftees. (Ooops, someone forgot that members of US armed forces are not draftees either!)

        If one were to issue letters of marque against Al Qaida terrorists, how would the recipients of the letters of marque remunerate themselves? You keep not answering this simple question, great determination. (Unless your answer is to steal the property of innocent family of Osama Bin Laden.)

        The point is that the instrument of the letter of marque is irrelevant to the struggle against terrorism. It’s irrelevant to almost all modern war. “Almost” because it’s pleasant to imagine a war against Saddam Hussein conducted entirely by private military forces who would be invited to help themselves to Iraqi oil. Great great movie idea!

        I admire your powerful, headlong drive toward irrelevancy

      • In case you have forgotten (conveniently or otherwise), most terrorists come from middle or upper class backgrounds, not the massive slums created by the policies of economic nationalism pursued by Middle Eastern dictators.

        The point is that the instrument of the letter of marque is irrelevant to the struggle against terrorism.

        Yeah right. Why don’t we engage in over a decade of fruitless nation-building (like the impotent and now socialist Europeans failed to do a century ago) and expand the “war on terror” to include other states in the region that had nothing to do with 9/11 rather than introduce market-based incentives to target a specific group of terrorists? Mercenaries (or legal pirates) would have found bin Laden in Pakistan years and years ago.

        Three quickies: 1) the presence of US ships in the region sucked Tunis, Algiers and the Kingdom of Morocco into the war (against the US), so adding state power to the mix only worsened the situation, 2) it was a group of mercenaries of mostly Greeks and Arabs who captured Tripoli in defiance of Jefferson’s orders and therefore was not recognized in any of the peace negotiations, and 3) Clinton was fighting al-Qaeda in the ’90’s, so the attacks of 9/11 weren’t random acts of Muslim terrorist violence. You have yet to rebut this simple point. If we incorporate the realization that the Saudis have many rivals both within and without its official borders, and add the presence of US troops in Saudi Arabia for the protection of the Saudis to the mix, we can logically conclude that US policymakers accidentally inspired bin Laden’s enmity towards the republic. We have been fighting al-Qaeda since the early ’90’s.

  4. You are embarrassing yourself again Dr. J. It’s okay, I have left-wing academics in my family who do the same thing around the Christmas dinner table. I’ll still hang out with you (speaking of which: are we still on for doing magic mushrooms together later this summer?).

    First, I didn’t realize that I would have to spell out the how mercenaries (or legal pirates, if you prefer) would get their money for getting bin Laden. Osama bin Laden is a billionaire. Mercenaries (or legal pirates) are protected by international law. Once the job was done, mercenaries (or legal pirates) would then have access, via whichever courts froze bin Laden’s assets, to his money.

    • jacquesdelacroix says:

      You make me smile on the most solemn days: Corsairs capture Bin Laden swiftly, take him to an ATM, put a gun to his ear until he takes our all his money to pay them, $400 at a time.

      Note that you have not seen me defend “nation-building” in Afghanistan. In your book, if you defend any policy, you become responsible for every aspect of every aspect of the implementation of the policy. Am I also responsible for the supply sergeant who issued the wrong ammunition to an Army squad south of Kandahar?

  5. Note that you have not seen me defend “nation-building” in Afghanistan.

    Oh sure. I was just trying echo Ron Paul’s point – made on the House floor just days after 9/11 – that without congressional direction a military mission abroad will most likely spiral out of control and end up as a fruitless nation-building exercise, an excuse to broaden the front, or a combination of both.

    Reality suggests Congressman Paul was right (again).

    • jacquesdelacroix says:

      Military missions always spin out of control unless you declare total war with unconditional capitulation the only acceptable issue. That’s what the allies did in WWII. Good move!

      • Percy says:

        To –

        No evidence provided on your claims against Ron Paul, wikipedia used as a source, unsuccessfully arguing trivial points while getting owned on the important ones… Is this providing you the pat on the back you seem to desperately need? Have you served overseas? The blood of our servicemen and woman is on your hands. Being pompous only seals the deal further.

      • jacquesdelacroix says:

        Percy: You must have shed your blood overseas to be entitled to a political opinion?

        Do you know that “our servicemen” are all volunteers? Inform yourself and calm down.

      • Jerry S. says:

        Fug u percy u anit shit bitch
        USA 4 EVA!!!11

      • jacquesdelacroix says:


      • jacquesdelacroix says:


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