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Time running short for ending ‘Don’t Ask, Don’t Tell’

Activists pressure Senators to end ban during lame duck session

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White House Press Secretary Robert Gibbs rankled LGBT advocates after he failed to mention ‘Don’t Ask, Don’t Tell’ repeal when asked about legislative priorities in the lame duck session of Congress. (Washington Blade photo by Michael Key)

Supporters of “Don’t Ask, Don’t Tell” repeal are pushing the Senate to end the law in the lame duck session of Congress amid questions about whether sufficient support exists to complete the task by year’s end.

One Democratic aide, who spoke on condition of anonymity, told the Blade that Senate passage of major defense budget legislation to which “Don’t Ask, Don’t Tell” repeal is attached would require “all the stars aligning” as well as active support from President Obama and Defense Secretary Robert Gates.

Asked this week whether those elements were coming into alignment as the lame duck session approaches, the aide said, “Hell no. We ain’t anywhere near alignment.”

Senate Armed Services Committee Chair Carl Levin (D-Mich.) told reporters on Tuesday that passing the fiscal year 2011 defense authorization bill with the “Don’t Ask, Don’t Tell” repeal language presents challenges.

“We’re trying to get both things accomplished, and we just don’t know if we can,” Levin said, according to the Grand Rapids Press.

“Republicans have filibustered the whole defense bill because of that [‘Don’t Ask, Don’t Tell’] provision. There’s some people who say that unless the defense bill has that provision, that we shouldn’t pass it,” he continued. “My position is, we should try to get both things done some way or another.”

Media reports circulated this week that Levin was engaged in talks with Sen. John McCain (R-Ariz.) to advance the defense authorization bill after stripping it of the “Don’t Ask, Don’t Tell” repeal language.

But while some see challenges in moving forward with legislative repeal of “Don’t Ask, Don’t Tell,” others see a path forward if certain conditions are met.

Winnie Stachelberg, senior vice president for external relations at the Center for American Progress Action Fund, said Tuesday in a conference call with reporters that advocates are in a “solid position” to see legislative repeal of “Don’t Ask, Don’t Tell” before year’s end.

Stachelberg cited recent public statements from the White House, Senate Majority Leader Harry Reid (D-Nev.) and Gates to back that assertion.

“The administration’s really strong statement [Monday], Sen. Reid’s statement saying they are not going to stand for a defense authorization bill that strips out the repeal measure are really strong signals that people are moving to a phase where it’s about procedures, not about the will to get this done,” Stachelberg said.

In the statement on Monday, Pfeiffer said the White House “opposes any effort to strip ‘Don’t Ask, Don’t Tell’ from the National Defense Authorization Act.”

On Sunday, Gates made news when he told reporters that he supports legislative repeal of “Don’t Ask, Don’t Tell,” but isn’t sure of the likelihood of that happening. Previously, he said waiting for the Pentagon working group report on the issue, due Dec. 1, would be the best approach for congressional action.

“I would like to see the repeal of ‘Don’t Ask, Don’t Tell,’ but I’m not sure what the prospects for that are,” Gates said. “And we’ll just have to see.”

Jim Manley, a Reid spokesperson, said the senator wants to see passage of the defense authorization in lame duck, but added an agreement with Republicans is necessary to move forward.

“Like Defense Secretary Gates, Sen. Reid strongly supports the repeal of ‘Don’t Ask, Don’t Tell’ to help strengthen our volunteer force and is continuing to work toward passing the repeal this year,” Manley said. “He, of course, can’t do it alone. The senator needs Republicans to at least agree to have a debate on this issue — a debate he firmly believes the Senate should have.”

In a joint statement on Tuesday, senators known for supporting repeal of “Don’t Ask, Don’t Tell” called for legislative action before the year’s end. Sens. Joseph Lieberman (I-Conn.), Kirsten Gillibrand (D-N.Y.) and Mark Udall (D-Colo.) said the Senate “should act immediately to debate and pass” the defense authorization bill along the with the repeal language in the lame duck session.

“The Senate has passed a defense bill for forty-eight consecutive years,” the senators said. “We should not fail to meet that responsibility now, especially while our nation is at war. We must also act to put an end to the ‘Don’t Ask, Don’t Tell’ policy that not only discriminates against but also dishonors the service of gay and lesbian service members.”

The senators said a failure to act legislatively on “Don’t Ask, Don’t Tell” repeal could mean “a federal judge may do so unilaterally in a way that is disruptive to our troops and ongoing military efforts.” Last month, U.S. District Court Judge Virginia Phillips issued an injunction against enforcing “Don’t Ask, Don’t Tell” that confirmed her earlier ruling striking down the statute, but her decision was stayed by a higher court upon appeal.

“It is important that ‘Don’t Ask, Don’t Tell’ be dealt with this year, and it appears that the only way that can happen is if it’s on the defense bill,” the senators concluded.

Influencing moderate senators who may have voted “no” when the defense bill previously came before the Senate in September to change their votes a second time around is seen as essential for moving forward.

On Tuesday, the Human Rights Campaign announced that it deployed field organizers to eight states — Alaska, Arkansas, Indiana, Maine, Massachusetts, Ohio, Virginia and West Virginia — to persuade senators there to vote in favor of the defense authorization bill and “Don’t Ask, Don’t Tell” repeal. According to HRC, the efforts include mobilizing veterans to speak out, holding public events and blanketing local media with pro-repeal messages.

In a statement, Joe Solmonese, HRC’s president, said lawmakers have “one last chance” in the 111th Congress to “follow the advice of the president and top military leaders by sending ‘Don’t Ask, Don’t Tell’ to the dustbin of history.”

“It would be a travesty for a small group of senators to continue to hold hostage a bill with critical military equipment and pay raises just because some senators don’t want to even debate repeal,” Solmonese said.

The time limit for acting on legislative repeal of “Don’t Ask, Don’t Tell” in the lame duck session is among the challenges in getting it passed. Most repeal supporters say the Senate would need two weeks to debate and vote on the defense authorization bill, and more time is needed to conference the legislation with the U.S. House.

One Republican aide, who spoke on condition of anonymity, said the problem with passing the defense authorization bill isn’t having insufficient votes; it’s having insufficient time. The aide said waiting for a vote on defense authorization bill until December would mean repeal won’t happen this year.

“If Reid is serious about bringing this up, he needs to bring it up next week, he needs to cancel Thanksgiving recess and he needs to get it off the floor and into conference that first week of December,” the aide said.

But Stachelberg said she thinks Congress would stay in session for longer than what many Capitol Hill observers are expecting and would have more time to act on the defense authorization bill.

“Congress has to pass a [continuing resolution] and deal with expiring tax cuts,” Stachelberg said. “We anticipate that these issues will take longer than most people anticipate. A longer lame duck increases the likelihood of passing the defense authorization bill with ‘Don’t Ask, Don’t Tell’ in it.”

Even with a longer lame duck session, whether “Don’t Ask, Don’t Tell” is a priority for the administration remains in question.

Last week, White House Press Secretary Robert Gibbs didn’t mention repeal when asked during a news conference about legislative priorities in the lame duck session of Congress. Instead, Gibbs mentioned extending tax cuts to middle-class Americans and ratification of the START treaty, a nuclear arms reduction agreement with Russia.

Alex Nicholson, executive director of Servicemembers United, criticized the remarks and said the administration needs to make clear that it’ll push for repeal during lame duck.

“These omissions stand in stark contrast to what the president and his staff are saying elsewhere,” Nicholson said. “Mr. President, either your administration is with us or it’s against us, and a mediocre level of public advocacy from your White House is not standing with us.”

Stachelberg said she thinks Dan Pfeiffer’s statement on Monday offers a better sense of what the White House is thinking as opposed to Gibbs’ comments.

“Rather than looking earlier in the day from Gibbs’ comments … I would look to the later comments from Dan Pfeiffer showing that the administration really does care that this gets done and that they’ll stand firm on the defense authorization bill in ensuring that it includes ‘Don’t Ask, Don’t Tell’ repeal,” she said.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he’s “very concerned” Gibbs didn’t list the defense authorization bill as a priority for the lame duck session, but said he doesn’t think in that instance the White House press secretary “was speaking for the president.”

“The president has made it clear to some of us that he wants to get this done in the lame duck and I believe the president will be good on his word on this,” Sarvis said.

Another possible game changer for “Don’t Ask, Don’t Tell” repeal is the completion of the Pentagon working group study on implementing an end to the law. The group has a deadline of Dec. 1 to deliver its report to the defense secretary, but one source said a draft copy is already circulating within the Pentagon.

Sarvis mentioned the circulation of the draft copy and said his understanding is Levin has asked the Pentagon for a report on the status of the Pentagon working group’s recommendations.

“It’s appropriate that he do so when we know that a draft of that report is being circulated and that a draft of that report is in the hands of each one of the service chiefs,” Sarvis said.

Last weekend, Marine Corps Commandant Gen. James Amos, who assumed his position as service chief last month, said now isn’t the time for “Don’t Ask, Don’t Tell” repeal and that he’s trying to determine how to “measure that risk” of ending the law.

On Monday, the general’s comments were rebuked by Chairman of the Joint Chiefs of Staff Adm. Michael Mullen, who said he was “surprised” by Amos’ remarks and surprised he said them publicly.

Sarvis said he thinks what he called Amos’ “tirade” is related to “his being disappointed in what he saw in that report.” Media reports have stated the report will reveal that a majority of U.S. troops don’t care if gays are serving openly in the U.S. armed forces.

Could the report bolster legislative efforts to repeal “Don’t Ask, Don’t Tell”? Stachelberg said the Dec. 1 deadline for the report gives senators ample time to review the findings and take action in lame duck.

“Gates’ comments over the weekend, I think, suggest that this study — in alignment with the legislative process — will be positive,” she said.

The Center for American Progress has identified 10 senators who’ve said they want to see the Pentagon study to help inform their decision on lifting the military’s gay ban.

Among them are Sens. Scott Brown (R-Mass.), Lindsey Graham (R-S.C.), Judd Gregg (R-N.H.), McCain, Mark Pryor (D-Ark.), Olympia Snowe (R-Maine), George Voinovich (R-Ohio) and Jim Webb (D-Va.). The newly elected senators who, because of state election laws, are expected to take their seats during lame duck — Mark Kirk of Illinois and Joe Manchin of West Virginia — have also made statements along these lines.

“Some of these had opportunities to vote for or against repeal in either the House or Senate Armed Services Armed Committee, but each of them took the opportunity to say that — notwithstanding their ‘no’ votes — they wanted to see the complete assessment before Congress moves forward,” Stachelberg said. “We believe this gives them an opportunity to do so.”

Sarvis said he thinks the completion of this report, as well as Gates’ comments saying he wants congressional action on “Don’t Ask, Don’t Tell,” will be helpful in moving moderate senators to support repeal.

“I believe the report is going to satisfy a number of those senators who said they didn’t want to vote until that report was finished and they didn’t want to vote until they heard from Secretary Gates,” Sarvis said. “Well, they heard from Secretary Gates and they’re going to have the report shortly.”

The election of Kirk in Illinois has been nettlesome to many supporters of “Don’t Ask, Don’t Tell” because he voted against a repeal measure as a U.S. House member, and, upon taking his seat in lame duck, would replace Sen. Roland Burris (D-Ill.), among the strongest supporters of repeal.

Sarvis said Kirk’s position is “not entirely clear,” but emphasized that the newly elected wouldn’t even be in the Senate if Reid schedules the defense authorization bill for a vote early in the lame session.

“If the Senate moves to lay the bill down the week of the 15th when they come back, and we have the critical vote to proceed in November, Sen. Burris will still be in the Senate,” Sarvis said. “The secretary of state of Illinois has indicated that there will not be any certification [to seat Kirk] until December.”

Among those senators identified by the Center for American Progress, McCain has opposed “Don’t Ask, Don’t Tell” repeal even before the Pentagon announced its intention to end the law. Repeal advocates have said they believe McCain will continue to oppose an end to “Don’t Ask, Don’t Tell” no matter the results of the report.

But Stachelberg said the completion of the report may prompt McCain to at least drop his objection to moving the defense authorization bill as a whole to the Senate floor.

“I think he will continue to vote ‘no’ on repeal,” she said. “I think it’s a question about whether he will obstruct and stand in the way of passage of a defense authorization bill — a bill that he has cared about for years.”

After the completion of the Pentagon study, it’s possible that members of the Senate Armed Services Committee would call for hearings to examine the working group’s findings. Having to wait for hearings could delay congressional action on “Don’t Ask, Don’t Tell.”

But Rudy DeLeon, senior vice president of national security and international policy for the Center for American Progress Action Fund, said the Senate can take action to repeal “Don’t Ask, Don’t Tell” before holding hearings on the issue.

DeLeon noted that the legislation pending before Congress has a 60-day waiting period from the time that repeal is certified to the time that an end to “Don’t Ask, Don’t Tell” is enacted.

“There really is a clock that will give the military a full voice, give the military a seat at the table, so the Joint Chiefs and the combatant commanders will certainly be able to offer their views on the implementation of the repeal,” he said.

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Police describe Wilton Manors Pride incident as ‘fatal traffic crash’

Pickup truck driver identified as 77-year-old man

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A screenshot from a video taken at the scene by Joey Spears. (Image courtesy of @pinto_spears, via Twitter.) Screenshot used with permission from South Florida Gay News.

The Fort Lauderdale Police Department on Sunday released additional information about an incident at a Wilton Manors Pride parade that left one person dead and another injured.

A press release notes a 77-year-old man who was “a participant who had ailments preventing him from walking the duration of the parade and was selected to drive as the lead vehicle” was behind the wheel of a 2011 white Dodge Ram pickup truck that struck the two people near the Stonewall Pride Parade’s staging area shortly before 7 p.m. on Saturday.

“As the vehicle began to move forward in anticipation for the start of the parade, the vehicle accelerated unexpectedly, striking two pedestrians,” reads the press release. “After striking the pedestrians, the driver continued across all lanes of traffic, ultimately crashing into the fence of a business on the west side of the street.”

“The driver remained on scene and has been cooperative with investigators for the duration of the investigation,” further notes the press release. “A DUI investigation of the driver was conducted on scene and showed no signs of impairment.”

The press release confirms the driver and the two people he hit are members of the Fort Lauderdale Gay Men’s Chorus.

Fort Lauderdale Fire Rescue transported both victims to Broward Health Medical Center “with serious injuries.” The press release notes one of the victims died shortly after he arrived at the hospital.

The Fort Lauderdale Police Department, which is leading the investigation, has not publicly identified the victims and the driver, but the press release describes the incident as a “fatal traffic crash.” The press release notes the second victim remains hospitalized at Broward Health Medical Center, but “is expected to survive.”

“While no arrests have been made, the Fort Lauderdale Police Department continues to investigate this incident and will not be releasing the names of the involved parties due to the status of the investigation,” says the press release. “The Fort Lauderdale Police Department asks anyone who may have witnessed this incident, who has not already spoken to investigators, to contact Traffic Homicide Investigator Paul Williams at (954) 828-5755.”

The pickup truck narrowly avoided U.S. Rep. Debbie Wasserman Schultz (D-Fla.), who was in a convertible participating in the parade. Florida Congressman Ted Deutch was also nearby.

“Our thoughts and prayers are with those affected by the tragic accident that occurred when the Stonewall Pride Parade was just getting started,” said Fort Lauderdale Gay Men’s Chorus President Justin Knight in a statement he issued after the incident. “Our fellow chorus members were those injured and the driver was also part of the chorus family.”

“To my knowledge, this was not an attack on the LGBTQ community,” added Knight. “We anticipate more details to follow and ask for the community’s love and support.”

Fort Lauderdale mayor initially described incident as anti-LGBTQ ‘terrorist attack’

Fort Lauderdale Mayor Dean Trantalis initially described the incident as “a terrorist attack against the LGBT community,” without any official confirmation. Detective Ali Adamson of the Fort Lauderdale Police Department on Saturday confirmed to reporters that investigators are “working with” the Federal Bureau of Investigation, but stressed the “investigation is active and we are considering and evaluating all possibilities.”

“Last evening, at the start of what was to be a celebration of pride for the LGBT community and commemoration of our hard-won victories for equality, our community faced the worst of tragedies. The grief of our LGBT community — and greater Fort Lauderdale as a whole — is palpable,” said Trantalis on Sunday in a statement he posted to his Facebook page.

“I was an eyewitness to the horrifying events. It terrorized me and all around me. I reported what I saw to law enforcement and had strong concerns about what transpired — concerns for the safety of my community. I feared it could be intentional based on what I saw from mere feet away,” he added.

Trantalis added “law enforcement took what appeared obvious to me and others nearby and investigated further — as is their job.”

“As the facts continue to be pieced together, a picture is emerging of an accident in which a truck careened out of control,” he said. “As a result, one man died, two others were injured and the lives of two members of Congress were at risk. My heart breaks for all impacted by this tragedy.”

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ACLU and Justice Department to jointly challenge anti-Trans laws

Recently passed anti-transgender laws in West Virginia and Arkansas violate the Equal Protection Clause of the U.S. Constitution.

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U.S. Department of Justice, Robert F. Kennedy Building (Photo Credit: GSA U.S. Government)

WASHINGTON – In court documents filed Thursday in the U.S. District Court for the Southern District of West Virginia and in U.S. District Court for the Eastern District of Arkansas, the U.S. Department of Justice, in Statement of Interest filings, joined the American Civil Liberties Union, (ACLU), arguing that recently passed anti-transgender laws in West Virginia and Arkansas violate the Equal Protection Clause of the U.S. Constitution.

The suits filed by the ACLU challenges an Arkansas law that bans gender-affirming care for transgender youth and a West Virginia law banning transgender youth from participating in school sports.

Chase Strangio, deputy director for Trans Justice with the American Civil Liberties Union LGBTQ & HIV Project, issued the following statement responding to the Department of Justice submitting a statement of interest in two federal courts supporting transgender youth;

“Today’s filings from the Department of Justice send a powerful message that discrimination against transgender youth is not just wrong, it is also plainly unconstitutional. These filings from the Department of Justice confirm what we have been telling legislatures all year: Banning trans youth from sports and denying trans youth health care violates the Constitution and federal law. We hope that state legislatures finally get the message.” 

Law and Crime reported that in the West Virginia case filing, the Justice Dept. argued that House Bill 3293, which bans transgender athletes at public schools from competing in female sports at the middle school, high school, and collegiate level, violates both the Equal Protection Clause and  Title IX of the Education Amendment of 1972.

The case stemmed from a complaint filed by the parents of transgender girl who said their daughter was unlawfully prohibited from trying out for the school’s cross-country track team because of the measure.

In Arkansas, the Justice Dept. backed an ACLU-filed lawsuit challenging a state law (Act 626) which bans gender-affirming health care for transgender youths. The DOJ also claims that state ban violates the Equal Protection Clause of the Fourteenth Amendment, Law & Crime reported.

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Immigrant rights groups demand ICE release transgender, HIV-positive detainees

Letter notes Roxsana Hernández case

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The Adams County Correctional Center in Natchez, Miss., is a privately-run facility that U.S. Immigration and Customs Enforcement uses to house some of its detainees. Eight immigrant rights groups have demanded ICE release all transgender people and people with HIV in their custody. (Washington Blade photo by Michael K. Lavers)

Eight immigrant advocacy groups this week demanded the release of all transgender and HIV-positive people who are in immigrant detention facilities.

Immigration Equality, the National Center for Lesbian Rights, the Transgender Law Center, the Santa Fe Dreamers Project, the Center for Victims of Torture, Familia: Trans Queer Liberation Movement, Mijente and the National Immigrant Justice Center made the request in a letter they sent to Homeland Security Secretary Alejandro Mayorkas and acting U.S. Immigration and Customs Enforcement Director Tae Johnson on June 16.

“As you know, transgender and HIV-positive people are severely suffering in U.S. immigration detention facilities,” reads the letter. “Those who do not perish from mortally deficient medical negligence are regularly mistreated, isolated and sexually assaulted.”

The letter notes DHS “for years” has “attempted to create conditions of confinement that are safe for these historically disenfranchised minorities.”

“This has been a fool’s errand,” it says. “Under both Democrat and Republican leadership, DHS has wasted millions of taxpayer dollars attempting to overcome a simple and inevitable truth: It is not possible for the U.S. government to house transgender and HIV-positive asylum seekers safely. Every progressive policy, every well-meaning protocol and every specialized facility has utterly failed. This has to stop. It is in your exclusive power to put an end to this ongoing human rights atrocity.”

“What makes this situation even more intolerable, is that the vast majority of the transgender and HIV-positive people suffering in immigration detention fled to the U.S. to escape persecution and torture,” adds the letter. “To these asylum seekers, the U.S. is more than a symbol of liberty. It is one of the few places in the world where they may hope to build a safer future. And yet, by detaining trans and HIV-positive people in such inhumane and unsafe conditions, the U.S. government is subjecting them to some of the same kinds of mistreatment they sought to escape.”

The groups in their letter demand ICE and U.S. Customs and Border Protection “to immediately release all transgender and HIV-positive people in their custody” and “review its system for identifying transgender and HIV-positive individuals, and work with stakeholders to ensure that it is effective and safe.” The groups also seek the creation of a policy “that deems all transgender and HIV-positive individuals non-detainable.”

The letter notes the case of Roxsana Hernández, a trans asylum seeker from Honduras with HIV who died in a New Mexico hospital on May 25, 2018, while she was in ICE custody.

Hernández’s family in a lawsuit it has filed against the federal government and five private companies who were responsible for Hernández’s care allege she did not have adequate access to medical care and other basic needs from the time she asked for asylum at the San Ysidro Port of Entry in San Diego on May 9, 2018, to her arrival at the Cibola County Correctional Center, a privately-run facility in Milan, N.M., a week later.

ICE in 2017 opened a unit for trans women at the Cibola County Correctional Center. It closed last year.

A picture of Roxsana Hernández, a transgender Honduran woman with HIV who died in ICE custody in 2018, hangs on a wall inside the offices of Colectivo Unidad Color Rosa, an LGBTQ advocacy group in San Pedro Sula, Honduras. (Washington Blade photo by Michael K. Lavers)

The letter also notes the case of Johana “Joa” Medina León, a trans woman with HIV from El Salvador who asked for asylum in the U.S. in 2019 after she suffered persecution in her home country because of her gender identity.

Medina was in ICE custody at the privately-run Otero County Processing Center in Chaparral, N.M., until her transfer to a hospital in nearby El Paso, Texas, on May 28, 2019. ICE on the same day released Medina from their custody.

Medina died three days later.

“She became worse, worse, worse,” Medina’s mother, Patricia Medina de Barrientos, told the Washington Blade in an exclusive interview in the Salvadoran capital of San Salvador that took place a few weeks after Medina’s death. “She asked for help because she was a nurse, but they refused. She was denied help. There was no medical attention.”

Johana “Joa” Medina León, a transgender woman with HIV from El Salvador, died on June 1, 2019, at a hospital in El Paso, Texas, three days after ICE released her from their custody. (Photo courtesy of Patricia Medina de Barrientos)

The letter also includes testimonials from dozens of other trans and/or HIV-positive people who say they suffered physical abuse and survived sexual assault while in ICE custody. They also allege they did not receive adequate health care — including access to hormones and antiretroviral drugs — while in detention.

“Throwing LGBTQ and HIV-positive asylum seekers into prison is cruel, expensive and dangerous. For transgender and HIV-positive people, it can even be deadly,” said Immigration Equality Policy Director Bridget Crawford in a statement. “In response to years of consistently documented abuses against the community, the government has implemented ineffective half-measures that have utterly failed. That is why we have demanded that DHS release all transgender and HIV-positive people immediately. No one should ever be locked into prison because they fled persecution based on their sexual orientation, gender identity, or HIV status. Doing so during a pandemic is a human rights atrocity.”

Immigration Equality is among the groups that have previously demanded ICE release all trans people who are in their custody. Advocacy organizations have also called for the release of people with HIV in ICE custody, especially during the COVID-19 pandemic.

DHS, which oversees ICE, has not responded to the Blade’s request for comment on the June 16 letter.

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