Bill Black: Is it Legal Malpractice to Fail to Get Holder to Promise Not to Torture your Client?

Yves here. I wonder whether Black’s pointed analysis still manages to be too charitable. After all, we don’t do torture in the US or elsewhere. It’s “enhanced interrogation”.

By Bill Black, the author of The Best Way to Rob a Bank is to Own One and an associate professor of economics and law at the University of Missouri-Kansas City. Cross posed from New Economic Perspectives

One of the things I never expected to read was a promise by any United States official that a potential defendant in a criminal prosecution by our federal courts “will not be tortured.”

The idea that the Attorney General of the United States of America would send such a letter to the representative of a foreign government, particularly Russia under the leadership of a former KGB official, was so preposterous that I thought the first news report I read about Attorney General Holder’s letter concerning Edward Snowden was satire. The joke, however, was on me. The Obama and Bush administrations have so disgraced the reputation of the United States’ criminal justice system that we are forced to promise KGB alums that we will not torture our own citizens if Russia extradites them for prosecution.

The standard joke that came to mind when I read Holder’s letter was the bartender who brings out glasses to three customers and asks “which of you ordered his whiskey in a clean glass?” We take it for granted that no restaurant or bar will knowingly serve us our drinks in a dirty glass. I always took it for granted that no U.S. attorney general would knowingly allow a criminal suspect in U.S. custody to be the victim of torture, raped, branded, or a host of other forms of brutality.

It is difficult to conceive of why Holder would humiliate America by promising Russia that we would not torture Snowden were Russia to extradite him. Perhaps it was a clever propaganda ploy by Russia that Holder fell for like a rube (reprising his infamous failure when he was “played” by the fugitive Marc Rich’s lawyers to deliver via President Clinton one of the most embarrassing pardons in presidential history).

More likely, Holder is under so much pressure from the intelligence “community” to punish Snowden that he thought he was being clever by promising Russia that we would not torture our own citizens – in this particular case. Holder phrased his explanation in a manner that suggests he was trying to be clever: “Torture is unlawful in the United States.” “Gitmo,” of course, is not “in the United States.” The locations of the many secret prisons the U.S. established in other nations were chosen so that we could torture suspects. The infamous historical parallel for this is that it was unlawful to hold slaves in England – but England could dominate the Atlantic slave trade and hold millions of slaves in the Caribbean islands because slavery was unlawful only “in” England under English law.

More subtly, note that Holder says that torture is “unlawful” – not “illegal.” An act that is merely “unlawful” cannot be prosecuted as a crime. It may provide the basis for a civil suit. An “illegal” act can be prosecuted. After World War II, the United States prosecuted members of the Japanese military for torturing U.S. POWs (particularly by “waterboarding” our men). Those found guilty received severe sentences, often execution by hanging.

The CIA officials who conducted and ordered that we torture suspects through means that included waterboarding”, in at least one case roughly 100 times, are understandably anxious to escape prosecution for acts that the U.S. has taken the position constitute war crimes warranting execution. Holder, therefore, claims that torture is merely “unlawful” (and only if inflicted “in the United States”). Torture, of course, is illegal. It involves the intentional infliction of intense pain and terror. It is designed to produce severe physical and psychological trauma. It inherently constitutes aggravated battery. It often leads to death even when the torturer does not desire that the victim die (at least prior to the extraction of additional statements from the victim). These forms of homicide are illegal and range from second degree to first degree murder.

Holder’s letter promising the Russians that we would not torture Snowden also raises a practical question for the defense bar. Is it malpractice for defense counsel not to demand written assurances from the U.S. attorney general in any extradition case that the United States will not torture the suspect – in any nation? Do defense lawyers need to extract a written promise that the suspect will not be assassinated by the U.S. prior to trial? How about a promise that the United States will not hold the suspect’s family hostage (or worse) if they agree to waive extradition? It is obscene that Holder promised not to torture Snowden, but the underlying obscenity is that the United States did torture suspects and Holder has refused to prosecute those who ordered and conducted the torture. When a nation engages in torture the consequences for its honor are long-standing and lead to a series of disgraces.

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  1. Tom

    Hilarious and well put by Bill Black. One might add that in Europe there is another promise by Holden that has gotten a lot of play in Europe: not to execute Snowden. And the irony here is that Russia has indefinitely suspended the death penalty as demanded by the council of Europe. And has publicly -again a lot of play in European media but seemingly not in the US- stated that that is a further reason why she won´t extradite Snowden. Just apart from the fact that there is no extradition agreement between the US and Russia.
    Russia has the moral high ground in European opinion and the US is in a hole and won´t stop digging.

  2. Adroit

    The U.S. has responded to the challenges posed by the Snowden case in ways worthy of a Keystone Cops farse, and unworthy of a superpower.
    Clearly, Snowden has access to information so compromisimg that cooler heads are nowhere to be found in the administration.
    We have seen a series of desperation moves, where the interception of the Bolivian president’s flight ranks high as decision making through one’s posterior.
    This latest, that the U.S. won’t execute or torture Snowden, “now can we please have him back?” – must have other world leaders laughing at the extent to which the U.S. works to look ridiculous in the eyes of world opinion.
    Another act of Ministry of Truth caliber is the recent disappearing of Obama’s promise that Whistleblowers will be protected, and that they are an important conduit for bringing illegal acts to the attention of the government and the public.

    A U.S. shadow government has been exposed through this case, one that obviously considers the Constitution a draft at best. That this happens under a “constitutional scholar” president reaches the heights of tragicomedy.

    1. Adroit

      Try to read this without laughing, given this administration’s war on whistleblowers. This is the text of Obama’s promises re. whistleblowers during his 2008 campaign. Now disappeared from

      Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

      1. Cynthia

        The more whistleblowers that get prosecuted, the more whistleblowers that will come forward, each learning from the lessons of the last. The number of skeletons in the US intelligence agency closets is surely far, far greater and more damning than any of us dare imagine.

        “No matter how paranoid or conspiracy-minded you are, what the government is actually doing is worse than you imagine.” — William Blum

        We are witnessing the last gasps of a once great country.

    2. Dan Kervick

      Yeah, I’ve wondered about that too. These guys seem really, really, really desperate to get to Snowden, and are willing to embarrass the country repeatedly in order to get him.

      And yet all Snowden has done is reveal the names and existence of programs everyone already knew in their heart were in place.

      He must have more stuff – stuff than can end careers and produce long jail sentences.

      1. F. Beard

        He must have more stuff – stuff than can end careers and produce long jail sentences. Dan Kervick

        I’d bet you’re right.

      2. jollyroger

        That certainly comports with Greenwald’s hints about the explosive character of data held back.

  3. Skeptic

    Bill Black, criminologist, now that Snowden has revealed the level of massive government crimes, please give us an estimate of how many white collar criminals are operating in the United States. Or please ask one of your associates or students to do so. It certainly seems to me that we now have a proven Massive Government Crime Wave to bookend the Massive Corporate Crime Wave.

    I hear statistics all the time generated by criminologists about traffic violations, baby deaths, property crimes, arson, etc. but never about the really important stuff. For instance, how many criminals were involved in looting trillions of dollars?

    It would be a great service to the public to have an estimate by a professional criminologist as to the width and breadth of the problem. It would be a great teaching tool for all. Even a ballpark figure would be of some use. Better yet would be a short video presentation with some graphics. You might also consider a White Collar Criminal Estimator, similar to the famous National Debt Clock. We could watch the Massive Crime Wave as it accelerates.

    My personal estimate is that, combining government and corporations, we now have three million serious white collar criminals operating. This estimate does not include their underlings. If you do not like my estimate, I look forward to hearing yours.

    The fact that such a serious and obvious subject has never, to my knowledge, been addressed by any criminologist seems to indicate that the subject is taboo, verboten in the profession. One then tends to draw the conclusion that this is another profession that does not serve the public interest very well.

  4. from Mexico

    If the many managerial positions are assumed by individuals deprived of sufficient abilities to feel and understand the majority of other people, and who also exhibit deficiencies in technical imagination and practical skills — (faculties indispensable for governing economic and political matters) — this then results in an exceptionally serious crisis in all areas, both within the country in question and with regard to international relations. Within, the situation becomes unbearable even for those citizens who were able to feather their nest into a relatively comfortable modus vivendi. Outside, other societies start to feel the pathological quality of the phenomenon quite distinctly. Such a state of affairs cannot last long. One must then be prepared for ever more rapid changes, and also behave with great circumspection.

    –ANDREW M. LOBACZEWSKI, Political Ponerology: A Science on the Nature of Evil Adjusted for Political Purposes

  5. Jim Haygood

    A memo promising not to torture a defendant isn’t worth the paper it’s written on. How do we know this? Because in 2002, John Yoo (a fascist dirtbag who was rewarded with a post at Berkeley law school) redefined sleep deprivation, binding in stress positions and waterboarding as ‘enhanced interrogation,’ legally permissible in ‘wartime.’ And like those cocktail-hour clocks where every digit is a 5, every day is ‘wartime’ now.

    Politicians who have successfully interpreted away the bulk of the Bill of Rights aren’t going to be bound by a silly memo. If nothing else, solitary confinement is not defined as torture. Given the national security risk that Snowden might whisper something secret to somebody, if detained presumably he could expect never to see another human face for the rest of his life.

    Holder has a warrant outstanding against him for contempt of Congress. Our nation’s chief legal officer is an at-large criminal. Arrest his sorry ass already.

    1. Banger

      Exactly, technically we live under an authoritarian regime. The Constitution is in force where it does not conflict with “national security” or, to be more precise, the security of the authoritarian regime. As long as we go along with the fundamental requirements of the regime we have some rights under the law theoretically. Even then, as a practical matter, our rights depend on the amount of money we have first and second, the social class we belong to.

    2. Cynthia

      Eric Holder is one of the slimiest creatures ever to slither out of the cesspool of Washington DC. He made his bones defending Chiquita death squads against labor unions in Colombia. The man is human filth.

      1. F. Beard

        I remember Chiquita! Their bananas would go from green to rotten without ever passing through ripe!

  6. F. Beard

    Cowards are often bullies and vice versa.

    And heck, it’s not like we aren’t going to die anyway so why disgrace ourselves while we live, especially if there may be an accounting after death?

  7. Old Soul

    Thank you, Professor Black, for exposing the absurdity that AG Holder “promised” Russia that the Edward Snowden would not be tortured if Russia causes him to be returned to the US to face prosecution for the alleged crime of espionage under a WWI statute. (Do we have a current constitutional declaration of war? No. Then how can a WWI statute apply?) The nation into which I was born in 1951 publicly abhorred torture and recognized that it was illegal under international war. The criminal and civil laws of this nation hold torture to be illegal. It is deeply disturbing that AG Holder would make an unenforceable promise not to do something that is illegal under our nation’s laws and international law. I construe the “promise” as an admission that he thinks that torture is an option that the US will not use in this case. This interpretation is legitimate, indeed compelling, based upon AG Holder’s statement that the killing of US citizens by drones not on US soil is a counterterrorism option, supported by the fact that at least 4 US citizens were admitted by Holder to have been killed by drone strikes. . Holder eventually responded that the administration would not target Americans on U.S. soil, after Senator Rand Paul’s filibuster to block the appointment of John Brennan as CIA Chief.
    “[Holder] said the government can justify lethal action against a citizen abroad once three criteria are met: a limited open window for attacking the target, a grave possible harm to U.S. citizens if the attack isn’t carried out, and a strong likelihood that targeting the person would head off a future attack against the U.S.” He does not mention any charges on probable cause, opportunity to be heard, public trial by a jury or any constitutional protections against the deprivation of life without due process of law. He has indicated, for the first time in US legal history as far as I know, that due process does not necessarily include court proceedings in a speech this year.

    Read more:

  8. Shutter

    Why does anybody believe Holder in the first place? The letter he wrote is worth about as much as the Constitution as far as he’s concerned.

    1. Cynthia

      Sociopaths don’t know a lie from the truth. They say whatever is expedient to get their way. Holder and his nest of vipers are all sociopaths.

  9. Lee Zehrer

    First thing Obama should have given this guy amnesty to return with the data if the data was that important. Then have an open dialog regarding spying and data collection. But of course King Obama couldn’t subject himself to this humility, even at a huge cost to the nation if that be the case like they say.

  10. Mcmike

    What holder also skipped over is what if we just treat snowden like manning, keeping him in solitary 23.75 hours per day for years, without charge, without open hearings, without outside contact … A practice that is certainly torture, but common in the us fascist regime.

    1. LucyLulu

      And naked, too. Allegedly to prevent Manning from hurting himself, as he was suicidal.

      After 30 years of working with the mentally ill, including some who were intensely suicidal, that was the first time I’d ever heard of suicide precautions that involved having ALL clothing removed. If any hospital staff did that, they would rightly be fired on the spot.

      If somebody is truly suicidal, leaving them feeling humiliated too is pretty sadistic. Perhaps even qualifies as torture.

  11. Jackrabbit

    Many are assuming that Holder’s letter relates to extradition proceedings.

    I believe the letter is really just part of the asylum process. The Russians sought a response to Snowden’s claims in his application. That is all.

    I don’t think Snowden is in any immediate danger of being extradited.

  12. don

    One can legitimately argue that solitary confinement for long periods of time – as B. Manning has experienced, as have many prisoners at Pelican Bay, some up to 25 years, and who are thus engaged in a hunger strike – is torture.

    Holder no doubt would see it otherwise.

    1. Cynthia

      How about a prisoner exchange? Russia sends Snowden back to us, and we’ll send Holder to Russia.

  13. Jackson Bane

    Belligerent threats only came from the bad guys in days gone by. To suggest that it’s ok to publically announce depravity, or in this case an implied restraint from depravity – since depravity has always existed in the shadows of foreign policy – is irresponsible. Not to sound trite, but think of the children. What kind of example does this set? Why is Holder still the AG? Snowden is probably more popular than most of congress, Holder is widely reviled, leading me to guess Carter’s statement was the most accurate thing heard all week: “America has no functioning Democracy”

  14. MaroonBulldog

    “These forms of homicide [death by torture]are illegal and range from second degree murder to first degree murder.” They’re felony murder, and I’d charge first degree every time.

  15. Jill

    This made me cry when I saw it yesterday. I haven’t been in denial about USGinc. but there was something about seeing this headline that encapsulated everything for me. I’ve been angry for a long time but this elicited deep sadness from me.

    Snowden would absolutely be tortured. Perhaps he’ll warrant a drone. That’s the kind of people we have running things, the people we’re up against in restoring a govt. tethered to the Constitution.

    Still I think they are afraid. I see they are now attacking the Liberal-Libertarian alliance. They must break down any attempt at people coming together to restore the rule of law. Certainly, they are overreacting in every way to Snowden. It shows fear. Good.

    1. Seal

      Gimme a break. We’re a law abiding nation. Snowden would not be tortured any more than Manning was. He might have to be suicide watched to death but not tortured.

      1. Lambert Strether

        Irony, right? Truthout:

        For the first 11 months of his confinement, [Manning] was held in solitary confinement and subjected to humiliating forced nudity during inspection. In fact, Juan Mendez, UN special rapporteur on torture, characterized the treatment of Manning as cruel, inhuman and degrading. He said, “I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes, at a minimum, cruel, inhuman and degrading treatment in violation of article 16 of the Convention against Torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Mendez could not conclusively say Manning’s treatment amounted to torture because he was denied permission to visit Manning under acceptable circumstances. Mendez also concluded that, “Imposing seriously punitive conditions of detention on someone who has not been found guilty of any crime is a violation of his right to physical and psychological integrity as well as of his presumption of innocence.”

    2. just me

      re “govt. tethered to the Constitution” – how? Ask Jefferson:

      “I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson

      Back then the law and the government were as much on trial in each case as the defendant was, and the jury knew their job included nullifying a prosecution they found to be unjust. Checks and balances. Constitution said/still says trial by “jury, jury, jury,” has not been amended; the sickly rubberstampy thing called a jury trial that we now see in courts is what happens when checks and balances go wanting. Court itself redefined jury function; no legislation involved. And rarely seen now too; if you’re a person human you get a plea bargain (see what Aaron Swarz would not accept), if you’re a corp you get a delayed prosecution agreement, a buyout.

  16. MaroonBulldog

    If torture’s a crime, and death by torture is murder, what is the culpability of those who see that it is never charged or punished? Are they accessories?

    1. Jill


      According to Jonathan Turley, they are in fact accessories after the fact. Prosecution for torture is not optional for Obama or Holder. It is required in our law. That means just as much as Holder’s written statement here.

      1. Jackson Bane

        The arrival of a new administration in 2008 meant that the previous administration wouldn’t be held accountable for their warcrimes . No matter who you voted for it was the work of Bybee, Yoo and others that was progressive and groundbreaking.

  17. Adroit

    The American Service-Members’ Protection Act was created in order to ensure that no American official or member of the military could be brought before the International Criminal Court in The Hague.
    This was done in 2002, as a safeguard. It’s a doozy, and the U.S. has been spiraling downwards since.

    From Wiki:

    ASPA authorizes the President to use “all means necessary and appropriate to bring about the release of any US or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court”. This authorization has led the act to be nicknamed The Hague Invasion Act,[3][4] because the freeing of U.S. citizens by force might be possible only through an invasion of The Hague, Netherlands, the seat of several international criminal courts and of the Dutch government.
    The Act prohibits federal, state and local governments and agencies (including courts and law enforcement agencies) from assisting the Court. For example, it prohibits the extradition of any person from the United States to the Court; it prohibits the transfer of classified national security information and law enforcement information to the Court; and it prohibits agents of the Court from conducting investigations in the United States.
    The Act also prohibits U.S. military aid to countries that are party to the Court. However, exceptions are allowed for aid to NATO members, major non-NATO allies, Taiwan, and countries which have entered into “Article 98 agreements”, agreeing not to hand over U.S. nationals to the Court. The President may waive this prohibition if he determines that to do so is “important to the national interest of the United States”.

  18. Cynthia

    Snowden should declare himself a US National Bank. Goldman and Morgan Stanley did this and they were instantly immune from prosecution. Everyone knows that Holder would never prosecute a bank.

    Either that, or he should join the New Black Panthers. Holder is too much of a racist bigot to prosecute one of his fellow black brothers.

  19. optimader

    So appalling that this degeneration of a page from Joe Stalin’s playbook.. literally, is tolerated.

    Impeach Obama


    There is the moral of all human tales;”
    “Tis but the same rehearsal of the past,
    First Freedom, and then Glory — when that fails,
    Wealth, vice, corruption, — barbarism at last.
    And History, with all her volumes vast,
    Hath but one page, — ’tis better written here,
    Where gorgeous Tyranny hath thus amass’d
    All treasures, all delights, that eye or ear,
    Heart, soul could seek, tongue ask — Away with words! draw near,


    Admire, exult, despise, laugh, weep, — for here
    There is such matter for all feeling: — Man!
    Thou pendulum betwixt a smile and tear,
    Ages and realms are crowded in this span,
    This mountain, whose obliterated plan
    The pyramid of empires pinnacled,
    Of Glory’s gewgaws shining in the van
    Till the sun’s rays with added flame were fill’d!
    Where are its golden roofs? where those who dared to build?

    by Lord Byron
    from Canto the Fourth – Childe Harold’s Pilgrimage (1812)

  20. ltr

    July 27, 2013

    U.S. allowed Italian kidnap prosecution to shield higher-ups, ex-CIA officer says
    By Jonathan S. Landay – McClatchy

    WASHINGTON — A former CIA officer has broken the U.S. silence around the 2003 abduction of a radical Islamist cleric in Italy, charging that the agency inflated the threat the preacher posed and that the United States then allowed Italy to prosecute her and other Americans to shield President George W. Bush and other U.S. officials from responsibility for approving the operation….

  21. JerseyJeffersonian

    An email to my friends upon reading this post and the comments appended thereto:

    Remember that this sociopathic slimeball, AG Holder, serves at the pleasure of the President. Draw your own conclusion from that. I long ago drew my own conclusion. If it walks like a duck, and quacks like a duck… well? I guess Obama likes it this way.

    Boy, do I ever want to know a whole lot more about what Edward Snowden found out about the truth behind the fictions so sedulously maintained by our government authorities. Their desperation to ring down the curtain on this episode speaks volumes to me.

    Oh, and did you know that the pledge by Candidate Obama to do more to encourage and protect government whistle blowers has disappeared from Here is the disappeared section:

    “Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.”

    How very Orwellian. History being changed right before our eyes when previously maintained positions have become embarrassing or inconvenient to have lying about for curious minds to rediscover.

    This has progressed well beyond the expected untruthfulness of politicians to something a lot more ominous. Frankly, I await future developments with great trepidation, given the arc of events and legislation already enacted to cement into place something entirely alien -indeed, antithetical – to the foundational impulses of the nation as embodied in the true articulation of the spirit of the Republic, the Declaration of Independence.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by
    their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit
    of Happiness.— That to secure these rights, Governments are instituted among Men, deriving
    their just powers from the consent of the governed,— That whenever any Form of Government
    becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to
    institute new Government, laying its foundation on such principles and organizing its powers in
    such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence,
    indeed, will dictate that Governments long established should not be changed for light and
    transient causes; and accordingly all experience hath shewn, that mankind are more disposed to
    suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they
    are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same
    Object evinces a design t o reduce them under absolute Despotism , it is their right, it is their duty,
    to throw off such Government, and to provide new Guards for their future security.”

    Still sounds about right to me. In my book, we’ve already been making excuses and
    rationalizing intolerable behavior for quite a long time. So where are we now regarding
    that “long train of abuses and usurpations”? Pretty far along, in my estimation. How
    much longer do you think we should take this? Seriously.

  22. Timothy Gawne

    Astonishing. I am old enough to remember when it was the ‘evil empire’ that spied on its own people, and used torture.

    Now our own officials defend the same practices that Stalin and Beria used. We didn’t need torture and mass surveillance to defeat Hitler and Tojo; we sure don’t need it now! Unless the enemy is the people themselves…

    The American government should not even need to make the claim that we don’t torture – that alone is an outrage. That the claim is patently false – yes the US government does torture – makes it all the worse. The total lack of concern by the US elites when the attorney general makes a clear lie in public sends us into total Alice in Wonderland. Sigh.

    1. Mr. Jack M. Hoff

      It seems you are forgetting the fact that the ‘elite’ you speak of, live by and for lies. In fact their existence and reason for being are lies in themselves. Without lies, they’d be as common and ordinary as anyone else. Truth is absolutely not allowed in their circles.

  23. just me


    The CIA officials who conducted and ordered that we torture suspects through means that included waterboarding”, in at least one case roughly 100 times…

    It was, more precisely, 183 times in one month:

    According to the May 30, 2005 Bradbury memo, Khalid Sheikh Mohammed was waterboarded 183 times in March 2003 and Abu Zubaydah was waterboarded 83 times in August 2002.

    With follow-up by the New Yorker’s Jane Mayer:

    For something that they have been touting all these years as being so effective, you would think it wouldn’t take 83 or 183 times, whatever, to make it work if it really worked so well.

    Thanks for this great article.

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