GEORGETOWN UNIVERSITY LAW CENTER
THE LAW OF 24 Exploring U.S. Counterterrorism Efforts and the Rule of Law
WALTER GARY SHARP, SR. Adjunct Professor of Law
SYLLABUS Spring Semester 2008 – LAWG/J-853-08 – Room H5021 THE FOLLOWING TAKES PLACE BETWEEN 5:45 P.M. AND 7:45 P.M., ON TUESDAYS OF THE SPRING SEMESTER DURING THE 2008 U.S. PRESIDENTIAL ELECTION. The award winning Fox Television drama series 24* explores America’s fictional response to international terrorism through the eyes of Jack Bauer, a U.S. counter-terrorism agent. Oftentimes, without remorse or regard for the law, Agent Bauer is willing to do what has to be done when faced with the threat of kidnappings, assassinations, nuclear detonations, and bioterrorism on U.S. soil – despite traitors in his family, his unit, and the White House; partisan politics; sleeper cells; and hidden agendas. This course provides a detailed understanding of a very wide-range of U.S. domestic and international legal issues concerning counterterrorism in the context of the utilitarian and sometimes desperate responses to terrorism raised by the plot of 24. Course requirements include active classroom discussion and a paper of approximately 25 pages. [Two Semester Hours. Recommended: International Law] LECTURES AND CLASSROOM DISCUSSIONS OCCUR IN REAL-TIME. COURSE MATERIALS:
COUNTERTERRORISM LAW (© 2007 Aspen Publishers), Stephen Dycus, William C. Banks, and Peter Raven-Hansen. SECRETS OF 24 (© 2007 Squibnocket Partners LLC), Dan Burstein & Arne J. de Keijzer, Editors. Online supplemental materials identified in syllabus.
* 24 is produced by FoxTM in association with Real Time Productions. FOX™ is a registered trademark of Twentieth Century Fox Film Corporation, used under license by FOX. © 2001-2008 Twentieth Century Fox Film Corporation. All Rights Reserved.
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THE LAW OF 24 Exploring U.S. Counterterrorism Efforts and the Rule of Law
ADMINISTRATIVE NOTES – SPRING 2008 Although “The Law of 24” is named after the very popular television series “24”, this course is a serious examination of U.S. counterterrorism efforts and the rule of law. Students do not have to be a fan or regular viewer of the show “24” to enjoy or excel in the course. The intent is to draw from America’s fictional response to international terrorism presented in “24” as a series of hypotheticals for classroom discussion. Agent Jack Bauer’s utilitarian and sometimes desperate efforts to prevent terrorism on U.S. soil frequently cross conventional legal boundaries, but Jack Bauer’s heroic efforts – often at great personal sacrifice – highlight the extraordinary challenges facing democracies that must balance civil liberties during their struggle against terrorism. Always operating under the constant pressure of a ticking-bomb scenario, Jack Bauer is keenly aware of issues of morality and legality, but he always justifies his means for the greater good. The challenges presented in balancing U.S. civil liberties in times of crises, however, are not new to our great Nation. While under a declaration of martial law during the U.S. Civil War, Lamdin Milligan and four others were detained by the military and sentenced to hang by military court for charges including insurrection and conspiracy against the United States. In his argument before the court, the counsel for petitioner Milligan characterized the landmark 1866 U.S. Supreme Court habeas corpus case Ex parte Milligan as a “question of the rights of the citizen in time of war.” He condemned martial law as martial rule; i.e., no law at all, but he recognized utilitarian reasoning as a way to balance morality and legality in his eloquent discussion of the legal maxim “necessitas quod cogit defendit” [necessity justifies what it compels]. He warns, however, that “the person acting under the pressure of necessity, real or supposed, acts at his peril.” No legal maxim better describes Jack Bauer’s reasoning and no warning is more appropriate. “The Law of 24” is a two-credit course that requires active classroom participation, a five-minute presentation in class on the student’s paper topic, and a paper of approximately 25 pages. Students are expected to read or view and be prepared to discuss all required assignments, and regular attendance is considered a part of classroom participation. Students must abide by all Law Center policies. Without express permission from the professor otherwise, laptop computers may only be used in the classroom for purposes of taking notes. The students’ final grade will be based upon: Classroom participation: Paper presentation: Paper:
30% 10% 60%
There are two required books for this class. The casebook is COUNTERTERRORISM LAW, published in May 2007 by Professors Stephen Dycus, William C. Banks, and Peter Raven-Hansen. This is an excellent text that comprehensively covers the course material and will serve you in the future as an invaluable reference. For this course, a perfect companion piece to this casebook is SECRETS OF 24, published in December 2007 by The New York Times best-selling authors Dan Burstein and Arne J. de Keijzer. This text is an unauthorized guide, as described on the book’s website www.SecretsOf24.com, to “the political, moral, and philosophical issues underlying the hit television series, drawing on fascinating ideas and arguments from leading political figures, cultural commentators, celebrities, and experts in fields ranging from technology to theology.” Additional online materials to read or view are identified in the syllabus and may also be provided by email ahead of each class. Detailed episode guides for “24” are available online at http://www.fox.com/24/episodes, and a selected bibliography for optional reading is provided at the end of the syllabus. Some of the reading assignments or Georgetown University Law Center The Law of 24 Syllabus, Spring 2008 © Walter Gary Sharp, Sr. 2007-2008
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materials in the bibliography may be politicized, partisan, or judgmental in nature. Their assignment is not intended to be an endorsement of any one viewpoint or legal opinion. Rather, they are assigned to give the student a situational awareness and factual context that will hopefully make our objective and bipartisan classroom discussion more lively and meaningful. Paper topics must be within the scope of the course. Students must submit by email to the professor for approval a one-paragraph description of their paper topic no later than Tuesday, February 26. Papers must be analytical in nature and not simply a compilation of research applicable to a given topic; i.e., students must present a thesis and support a stated position. Papers must be double-spaced and prepared in Times New Roman 12 point font with one-inch margins, and must be organized as follows: cover page, one-paragraph statement of thesis, table of contents, text of the paper, and bibliography of sources referenced. The paper must be approximately 25 pages (approximately 7,000 words), excluding the word count of footnotes or endnotes, cover pages, bibliographies, etc. Students must include this word count on the cover page of their paper. Papers should be of publishable quality and conform to the 18th edition of THE BLUEBOOK. No interim outlines or drafts are required, but students should feel free to discuss their papers with the professor at anytime. Final papers must be submitted to the Office of the Registrar by close of business on the due dates indicated below and not to the professor. The syllabus is broken down for a reading assignment for each hour of class. Important dates for spring 2008 include: Tuesday, January 15 Tuesday, February 5 Tuesday, February 19 Tuesday, February 26 Tuesday, March 4 Tuesday, March 11 Tuesday, April 22 Monday, April 28 Monday, April 28 Tuesday, May 13
First day of class No class, travel of professor No class, faculty retreat Paper topic due to professor No class, spring break No class, travel of professor Last scheduled class Possible make-up class May graduates’ papers due to the Office of the Registrar All other papers due to the Office of the Registrar
Please note the Tuesday evenings set by the school that have no class scheduled. We will not have class on two additional evenings due to my travel schedule. To make up these two nights and hopefully avoid a Saturday or a makeup class, I have proposed that four of our classes spread throughout the semester run for three hours from 5:45 p.m. to 8:50 p.m., as annotated in the following course schedule. We will discuss whether this proposal will work on the first night of class, and will adjust accordingly. As an adjunct professor, I do not keep regular office hours at the Law Center – but I am available for consultation or questions at anytime by phone or email, and as necessary, we can set up a meeting. It is also important to note that although I am a U.S. Government employee, I am teaching this class in my personal capacity and all opinions, conclusions, and recommendations that may be expressed or implied during this class are solely those of the professor and do not necessarily represent the views of the U.S. Department of Defense or any governmental agency or civilian institution. Please feel free to contact me by email at
[email protected] or call me on my cell phone at (703) 604-4600. If you need to send me a fax, my personal fax number is (772) 6190970.
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THE LAW OF 24 Exploring U.S. Counterterrorism Efforts and the Rule of Law
COURSE SCHEDULE – SPRING 2008 HOUR
DATE
TOPIC PART I: INTRODUCTION
01:00
January 15
Course Administration; Framework Issues; Defining Terrorism and Counterterrorism PART II: ATTACKING TERRORISTS ABROAD
02:00
January 15
Waging War on Terrorists
03:00
January 22
Targeted Killing PART III: DETECTING AND PREVENTING TERRORISM
04:00
January 22
The Fourth Amendment and Counterterrorism
05:00
January 29
Congress and Counterterrorism Intelligence: The Foreign Intelligence Surveillance Act
06:00
January 29
Third-Party Records and Data Mining
07:00
February 12
Screening for Security
08:00
February 12
Organizing and Coordinating Counterterrorism Investigations
09:00
February 12
Investigating Abroad PART IV: DETAINING AND INTERROGATING TERRORIST SUSPECTS
10:00
February 26
Civil Detention of Terrorist Suspects
11:00
February 26
Suspending the Great Writ
12:00
February 26
Military Detention of Terrorist Suspects
13:00
March 18
Interrogating Terrorist Suspects
14:00
March 18
Extraordinary Rendition PART V: ARRESTING, PROSECUTING, AND REMOVING TERRORISTS
15:00
March 18
Criminalizing Treason, Terrorism, and Material Support
16:00
March 25
Apprehending Terrorists
17:00
March 25
Trying Suspected Terrorists as Criminals
18:00
April 1
Trying Suspected Terrorists as Unlawful Enemy Combatants
19:00
April 1
Trying Suspected Terrorists as “Special Interest” Immigrants PART VI: MANAGING TERRORIST ATTACKS
20:00
April 8
21:00
April 8
Responding to a WMD Attack The Military’s Domestic Role in Counterterrorism PART VII: NONCRIMINAL SANCTIONS AGAINST TERRORISTS AND THEIR SPONSORS
22:00
April 15
Public Sanctions Against Terrorists and Their Sponsors
23:00
April 15
Suing Terrorists and Their Sponsors PART VIII: COUNTERTERRORISM IN CYBERSPACE
24:00
April 15
Responding to Terrorists’ Use of the Internet
Last Class
April 22
Student Paper Presentations and Course Wrap-up
PART IX: CONCLUSION
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THE LAW OF 24 Exploring U.S. Counterterrorism Efforts and the Rule of Law
SYLLABUS – SPRING 2008
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Justice David Davis Ex parte Milligan 71 U.S. 2, 120-121 (1866)
Part I: Introduction (Return to Course Schedule)
Hour 01:00:
Course Administration; Framework Issues; Defining Terrorism and Counterterrorism
Assignment: Read: COUNTERTERRORISM LAW, Chapter 1. SECRETS OF 24, Chapter 1. Internet Supplemental Materials: Read or View: Jane Mayer, Whatever it Takes: The Politics of the Man Behind “24”, http://www.newyorker.com/reporting/2007/02/19/070219fa_fact_mayer, NEW YORKER, Feb. 19, 2007. PBS Frontline, The Enemy Within, http://www.pbs.org/wgbh/pages/frontline/enemywithin/view, Oct. 10, 2006. PBS Frontline, Cheney’s Law, http://www.pbs.org/wgbh/pages/frontline/cheney/view, Oct. 16, 2007. Skim: The National Security Strategy of the United States of America, http://www.whitehouse.gov/nsc/nss/2006, March 2006. National Strategy for Combating Terrorism, http://www.whitehouse.gov/nsc/nsct/2006, Sept. 2006. National Military Strategic Plan for the War on Terrorism, http://www.defenselink.mil/pubs/pdfs/2006-01-25-Strategic-Plan.pdf, February 1, 2006.
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Part II: Attacking Terrorists Abroad (Return to Course Schedule) Hour 02:00: Waging War on Terrorists Assignment: Read: COUNTERTERRORISM LAW, Chapter 2. Internet Supplemental Materials: Read or View: PBS Frontline, The Dark Side, http://www.pbs.org/wgbh/pages/frontline/darkside/view, June 20, 2006. The Use of Force Against Terrorism: American Hegemony or Impotence, 1 CHICAGO JOURNAL OF INTERNATIONAL LAW 37, 37 – 47 (2000). U.S. Department of State, State Sponsors of Terrorism, http://www.state.gov/s/ct/c14151.htm. U.S. Department of Justice, The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them, http://www.usdoj.gov/olc/warpowers925.htm, September 25, 2001. (Return to Course Schedule)
Hour 03:00:
Targeted Killing
Assignment: Read: COUNTERTERRORISM LAW, Chapter 3. SECRETS OF 24, Chapter 2. Internet Supplemental Materials: Read: Executive Order 12333, United States Intelligence Activities, December 4, 1981, as amended by Executive Order 13284, January 23, 2003, and Executive Order 13355, August 27, 2004.
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Part III: Detecting and Preventing Terrorism (Return to Course Schedule)
Hour 04:00:
The Fourth Amendment and Counterterrorism
Assignment: Read: COUNTERTERRORISM LAW, Chapter 4. Internet Supplemental Materials: Read or View: PBS Frontline, Spying on the Home Front, http://www.pbs.org/wgbh/pages/frontline/homefront/view, May 15, 2007.
Hour 05:00:
Congress and Counterterrorism Intelligence: The Foreign Intelligence Surveillance Act
Assignment: Read: COUNTERTERRORISM LAW, Chapter 5. SECRETS OF 24, Chapter 3.
Hour 06:00:
Third-Party Records and Data Mining
Assignment: Read: COUNTERTERRORISM LAW, Chapter 6.
Hour 07:00:
Screening for Security
Assignment: Read: COUNTERTERRORISM LAW, Chapter 7. SECRETS OF 24, Chapter 4. (Return to Course Schedule)
Hour 08:00:
Organizing and Coordinating Counterterrorism Investigations
Assignment: Read: COUNTERTERRORISM LAW, Chapter 8. (Return to Course Schedule)
Hour 09:00:
Investigating Abroad
Assignment: Read: COUNTERTERRORISM LAW, Chapter 9.
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Part IV: Detaining and Interrogating Terrorist Suspects (Return to Course Schedule)
Hour 10:00:
Civil Detention of Terrorist Suspects
Assignment: Read: COUNTERTERRORISM LAW, Chapter 10. SECRETS OF 24, Chapter 5. (Return to Course Schedule)
Hour 11:00:
Suspending the Great Writ
Assignment: Read: COUNTERTERRORISM LAW, Chapter 11. (Return to Course Schedule)
Hour 12:00: Military Detention of Terrorist Suspects Paper topic due to professor for approval (required). Assignment: Read: COUNTERTERRORISM LAW, Chapter 12. (Return to Course Schedule)
Hour 13:00:
Interrogating Terrorist Suspects
Assignment: Read: COUNTERTERRORISM LAW, Chapter 13. SECRETS OF 24, Chapter 6. Internet Supplemental Materials: Read or View: PBS Frontline, The Torture Question, http://www.pbs.org/wgbh/pages/frontline/torture/view, October 18, 2005. (Return to Course Schedule)
Hour 14:00:
Extraordinary Rendition
Assignment: Read: COUNTERTERRORISM LAW, Chapter 14.
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Part V: Arresting, Prosecuting, and Removing Terrorists (Return to Course Schedule)
Hour 15:00:
Criminalizing Treason, Terrorism, and Material Support
Assignment: Read: COUNTERTERRORISM LAW, Chapter 15. (Return to Course Schedule)
Hour 16:00:
Apprehending Terrorists
Assignment: Read: COUNTERTERRORISM LAW, Chapter 16. SECRETS OF 24, Chapter 7. (Return to Course Schedule)
Hour 17:00:
Trying Suspected Terrorists as Criminals
Assignment: Read: COUNTERTERRORISM LAW, Chapter 17. (Return to Course Schedule)
Hour 18:00:
Trying Suspected Terrorists as Unlawful Enemy Combatants
Assignment: Read: COUNTERTERRORISM LAW, Chapter 18. Internet Supplemental Materials: Read: U.S. Department of Defense Military Commissions Website, http://www.defenselink.mil/news/commissions.html . (Return to Course Schedule)
Hour 19:00:
Trying Suspected Terrorists as “Special Interest” Immigrants
Assignment: Read: COUNTERTERRORISM LAW, Chapter 19.
Georgetown University Law Center The Law of 24 Syllabus, Spring 2008 © Walter Gary Sharp, Sr. 2007-2008
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Part VI: Managing Terrorist Attacks (Return to Course Schedule)
Hour 20:00:
Responding to a WMD Attack
Assignment: Read: COUNTERTERRORISM LAW, Chapter 20. (Return to Course Schedule)
Hour 21:00:
The Military’s Domestic Role in Counterterrorism
Assignment: Read: COUNTERTERRORISM LAW, Chapter 21. Internet Supplemental Materials: Read: OPERATIONAL LAW HANDBOOK, Combating Terrorism, http://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2007.pdf, Chapter 17, pp. 423-434, 2007.
Part VII: Noncriminal Sanctions Against Terrorists and Their Sponsors (Return to Course Schedule)
Hour 22:00:
Public Sanctions Against Terrorists and Their Sponsors
Assignment: Read: COUNTERTERRORISM LAW, Chapter 22. (Return to Course Schedule)
Hour 23:00:
Suing Terrorists and Their Sponsors
Assignment: Read: COUNTERTERRORISM LAW, Chapter 23.
Georgetown University Law Center The Law of 24 Syllabus, Spring 2008 © Walter Gary Sharp, Sr. 2007-2008
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Part VIII: Counterterrorism in Cyberspace (Return to Course Schedule)
Hour 24:00:
Responding to Terrorists’ Use of the Internet
Assignment: Read: COUNTERTERRORISM LAW, no reading assignment. Internet Supplemental Materials: Read or View: Testimony of Deputy Assistant Secretary of Defense Michael S. Doran, Lieutenant Colonel Joseph H. Felter, and Frank J. Cilluffo, The Internet: A Portal to Violent Islamist Extremism, Hearings Before the Senate Committee on Homeland Security and Governmental Affairs, http://hsgac.senate.gov/index.cfm?Fuseaction=Hearings.Detail&HearingID=441, May 3, 2007. PBS Frontline, Cyberwar!, http://www.pbs.org/wgbh/pages/frontline/shows/cyberwar/view, April 24, 2003. 60 Minutes, Terrorists Take Recruitment Efforts Online, http://www.cbsnews.com/stories/2007/03/02/60minutes/main2531546.shtml, March 4, 2007. 60 Minutes, Jihadists Recruited on Web, http://www.cbsnews.com/sections/i_video/main500251.shtml, search by title, March 5, 2007. 60 Minutes, Taking the Battle to the Web, http://www.cbsnews.com/sections/i_video/main500251.shtml, search by title, March 2, 2007. Terrorists’ Use of Internet Spreads, USA TODAY, http://www.usatoday.com/money/industries/technology/2005-02-20-cyber-terror-usat_x.htm, February 21, 2005. Skim: The National Strategy to Secure Cyberspace, http://www.whitehouse.gov/pcipb, February 2003.
Part IX: Conclusion (Return to Course Schedule)
Last Class:
Student Paper Presentations and Course Wrap-up
Assignment: Internet Supplemental Materials: View: “24” Season 7 Trailer, www.fox.com/24.
Georgetown University Law Center The Law of 24 Syllabus, Spring 2008 © Walter Gary Sharp, Sr. 2007-2008
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THE LAW OF 24 Exploring U.S. Counterterrorism Efforts and the Rule of Law
SELECTED BIBLIOGRAPHY – OPTIONAL READING (Return to Course Schedule)
BOOKS Anonymous, THROUGH OUR ENEMIES’ EYES: OSAMA BIN LADEN, RADICAL ISLAM, AND THE FUTURE OF AMERICA, 2002. Bolton, John, SURRENDER IS NOT AN OPTION, 2007. Byers, Michael, WAR LAW, 2005. Clarke, Richard A., AGAINST ALL ENEMIES, 2004. Goldsmith, Jack, THE TERROR PRESIDENCY, 2007. Keegan, John, THE IRAQ WAR, 2004. O’Donnell, Pierce, IN TIME OF WAR, 2005. Posner, Richard A., NOT A SUICIDE PACT, 2006. Rehnquist, William H., ALL THE LAWS BUT ONE, 1998. Risen, James, STATE OF WAR, 2006. Romero, Anthony D., IN DEFENSE OF OUR AMERICA, 2007. Sharp Sr., Walter Gary, CYBERSPACE AND THE USE OF FORCE, 1999. Schmitt, Michael N. & O’Donnell, Brian T., COMPUTER NETWORK ATTACK AND INTERNATIONAL LAW, U.S. Naval War College International Law Studies, Volume 76, 2002. Terry, James P., THE REGULATION OF INTERNATIONAL COERCION, 2005. Yoo, John, THE POWERS OF WAR AND PEACE, 2005. Yoo, John, WAR BY OTHER MEANS, 2006.
INTERNATIONAL United Nations, The Charter of the United Nations, Preamble and Chapters I – VIII and XVI, http://www.un.org/aboutun/charter/index.html. United Nations, UN Action to Counter Terrorism, http://www.un.org/terrorism. United Nations, Treaties, Conventions & Agreements, http://www.hri.ca/uninfo/treaties/index.shtml. Interpol, Public Safety and Terrorism, http://www.interpol.int/Public/Terrorism/default.asp.
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MEDIA CBSNEWS.com, Global Terror, http://www.cbsnews.com/htdocs/terror/framesource.html.
NATIONAL National Security Presidential Directive 1 (NSPD-1), Organization of the National Security Council System, February 13, 2001. Homeland Security Presidential Directive 1 (HSPD-1), Organization and Operation of the Homeland Security Council, October 29, 2001. Executive Order 12333, United States Intelligence Activities, 46 Federal Register 59941, December 4, 1981, as amended. Executive Order 13231, Critical Infrastructure Protection in the Information Age, 66 Federal Register 53063, October 16, 2001, as amended. National Strategy for Homeland Security, http://www.whitehouse.gov/infocus/homeland/nshs/2007/index.html, October 2007. National Strategy for Information Sharing, http://www.whitehouse.gov/nsc/infosharing/index.html, October 2007. 9/11 Five Years Later: Successes and Challenges, http://www.whitehouse.gov/nsc/waronterror/2006, September 2006. Office of the Director of National Intelligence, National Counterterrorism Center, http://www.nctc.gov. Office of the Director of National Intelligence, NATIONAL INTELLIGENCE ESTIMATE: THE TERRORIST THREAT TO THE U.S. HOMELAND, http://www.dni.gov/press_releases/20070717_release.pdf, July 2007. U.S. Department of Justice, Prosecuting Computer Crimes, http://www.usdoj.gov/criminal/cybercrime/ccmanual/index.html, February 2007. U.S. Department of State, Country Reports on Terrorism 2006, http://www.state.gov/s/ct/rls/crt/2006, April 2007. U.S. Department of State, Office of the Coordinator for Counterterrorism, http://www.state.gov/s/ct. U.S. Federal Bureau of Investigation, Counterterrorism, http://www.fbi.gov/terrorinfo/counterrorism/waronterrorhome.htm. Information Operations, Joint Publication 3-13, http://www.dtic.mil/doctrine/jel/new_pubs/jp3_13.pdf, February 13, 2006. Doctrine for Joint Special Operations, Joint Publication 3-05, http://www.dtic.mil/doctrine/jel/new_pubs/jp3_05print.pdf, December 17, 2003.
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