Wednesday, August 06, 2014

The Dark Side of Interdependence




How Global Ties Tied Our Hands in Russia 

By Stuart Gottlieb and Eric Lorber

Foreign Affairs – August 5, 2014 

In recent months, the United States and the EU have ratcheted up diplomatic and economic pressure on Russia in response to its activities in Crimea and eastern Ukraine. Although the United States has hit major Russian companies with significant sanctions, the EU has remained decidedly more hesitant. It took the downing of Malaysia Airlines flight MH17 on July 17, purportedly by Russian-supplied separatists, and Russia’s increased involvement in eastern Ukraine in the weeks thereafter, for the EU to even begin matching its threats with real action. 

The EU’s reticence is understandable; the union’s countries are some of Russia’s main trading partners and rely heavily on Russian energy exports. This attitude has nevertheless drawn the ire of U.S. policymakers, many of whom believe that Europe’s hesitance is indicative of a general unwillingness among the United States’ transatlantic allies to punish international aggression. Senator John McCain (R-Ariz.) said as much on a recent television interview. “The Europeans are not going to do anything,” he said, continuing, if anyone believes the Europeans will impose firm sanctions, “I have some beachfront property for them in Arizona.” 

Those with such mindsets, however, have forgotten something important. Economic interdependence between the EU and Russia is the direct result of U.S. policies in the 1990s. During the Clinton administration, the United States actively tried to integrate Russia and the former Soviet republics into the liberal free trade framework that it was promoting throughout Europe. The policies were based on a deeply held belief that political and economic integration is the best way to avoid potential conflict in Europe.
And that creates a paradox. Greater interdependence might, in fact, reduce the likelihood of conflict between nations or groups of nations. After all, it increases the cost of conflict for all of them. However, as the EU-Russian case shows, the logic can also work in reverse. It is incredibly difficult to punish economic partners for international aggression. The rational fear of economic backlash creates high tolerance for international wrongdoing.

This is not to argue that the United States should turn its back on liberal integration as a primary foreign policy goal. Rather, it should recognize the downsides of integration and explore ways to ameliorate its effects.


THROWN TOGETHER


Following the end of the Cold War and the breakup of the Soviet Union, the United States actively fostered interdependence and closer economic and political ties throughout Europe. It also created or supported a number of forums -- the World Trade Organization’s Working Group on Russia, NATO’s Partnership for Peace, and the Partnership and Cooperation Agreement between the EU and Russia to name a few -- to help integrate Russia and the former Soviet republics into the larger European political and economic framework. 

Building on the political scientist Francis Fukuyama’s idea of the “end of history” -- that political, economic, and social systems were evolving toward some liberal endpoint -- and the George H. W. Bush administration’s concept of a “new world order” -- that U.S.-led global liberal institutions would help usher in a new era of post-Cold War cooperation -- the Clinton administration touted increased economic ties between the West and the former Soviet Union as “win-wins” all around. “The short-term difficulties of taking Central and Eastern Europe into Western economic institutions,” the administration stated in its 1994 National Security Strategy, “will be more than rewarded if they succeed and if they are customers for America’s and Western Europe’s goods and services tomorrow. . . . One of our priorities, therefore, is to reduce trade barriers with the former communist states.”

Efforts by U.S. policymakers to integrate the EU countries and Russia were not purely economic; they were also oriented toward politics and security. U.S. President Bill Clinton’s push for NATO expansion, for example, was about enlarging the realm of collective security interests to match the newfound economic engagement. Indeed, from then on, NATO was expected to not just fight wars, but also protect common liberal values. Strobe Talbott, Clinton’s undersecretary of state, made this clear when, in a 1997 speech on NATO enlargement, he offered up the possibility that Russia -- the country NATO was created to fight -- would one day be welcomed as a full member, so long as it met minimum democratic political requirements.

Integration might have been a top priority for U.S. foreign policy -- and the United States certainly led the charge -- but it also fit EU interests and goals. In addition, many former Soviet republics were the initiative’s biggest supporters. Russia, of course, was wary of NATO encirclement, but the benefits of economic integration proved difficult to ignore.   


FOR RICHER, FOR POORER 


Economically at least, the approach seemed to pay off. It helped produce significant benefits for the EU and Russia. Since the break-up of the Soviet Union, Russia has become the EU’s third-largest trading partner, while the EU is currently Russia’s largest trading partner. Overall, trade between the two entities is now valued at nearly 300 billion euros (over 400 billion dollars) a year, and roughly 75 percent of total foreign direct investment in Russia comes from the EU. Over the past 20 years -- in no small part because of the United States’ promotion of economic and political integration -- the EU and Russia have become increasingly economically tied at the hip. Meanwhile, former Soviet satellites and republics -- such as the Czech Republic, Hungary, Poland, and the Baltic states -- were incorporated into NATO and the EU, and Russia became a member of the G-8, the elite global economic forum. 

All of this integration, however, has had an unexpected consequence: Although the original policy was hailed as a way to ensure that Russia would be incorporated into the Western economic and political order -- and therefore would be less of a threat to the West -- it may have actually decreased the West’s ability to deter Russian aggression against other countries. For example, European concerns about their relationships with major Russian companies, such as Rosneft and Gazprom factored heavily in the EU’s reluctance to impose sanctions on Russia businesses. Indeed, with Russia in possession of the world’s largest gas reserves (and major oil reserves), energy had always been an important factor in integration -- the EU expected a new “stable” supply of energy. Although the EU recently agreed to impose somewhat stricter sanctions, it will continue to be more hesitant than the United States to turn the screws on one of its largest trading partners, even as that trading partner continues to make a mockery of Ukrainian sovereignty. 

Further, this dynamic illustrates a broader problem for liberal internationalist theory: Although economic interdependence may keep states from coming to blows, it may also limit their wherewithal to pressure their partners into complying with international standards of behavior.


BLAME GAME


Although economic integration may limit policymakers’ ability to put pressure on their trade partners, it does not mean that promoting such integration is wrong. If the EU and Russia did not have any economic ties, the EU would lack any significant leverage -- short of military action -- with which to threaten Moscow. In other words, policymakers must recognize that, although integration can achieve many shared goals, it can also box them in. 

In addition, rather than blaming the Europeans for supposed fecklessness, the United States should face up to the role that its own global liberal ideology and policy promotion played in creating the present dilemma. And both the United States and the EU should develop strategies to increase the credibility of their threats to impose sanctions on trading partners who engage in reprehensible global conduct. A good start would be for the EU and possibly even NATO to reconsider their policies of unanimity within the group to authorize any collective action. This would permit stronger action by these organizations, without the real and perceived political stalemate in the face of global threats.


For 70 years, U.S.-led global liberal institutions that promote free trade, interdependence, and international law have helped create a more peaceful, prosperous, and democratic world. But it is not a perfect world. If liberal values and institutions are going to continue to lead the way, Western policymakers need to recognize and address their shortcomings. Otherwise alternative, anti-liberal forces will certainly step up to the challenge.

Monday, August 04, 2014

Hamas’s Chances



Nathan Thrall

London Review of Books – August 2, 2014 

The current war in Gaza was not one Israel or Hamas sought. But both had no doubt that a new confrontation would come. The 21 November 2012 ceasefire that ended an eight-day-long exchange of Gazan rocket fire and Israeli aerial bombardment was never implemented. It stipulated that all Palestinian factions in Gaza would stop hostilities against Israel, that Israel would end attacks against Gaza by land, sea and air – including the ‘targeting of individuals’ (assassinations, typically by drone-fired missile) – and that the closure of Gaza would essentially end as a result of Israel’s ‘opening the crossings and facilitating the movements of people and transfer of goods, and refraining from restricting residents’ free movements and targeting residents in border areas’. An additional clause noted that ‘other matters as may be requested shall be addressed,’ a reference to private commitments by Egypt and the US to help thwart weapons smuggling into Gaza, though Hamas has denied this interpretation of the clause.

During the three months that followed the ceasefire, Shin Bet recorded only a single attack: two mortar shells fired from Gaza in December 2012. Israeli officials were impressed. But they convinced themselves that the quiet on Gaza’s border was primarily the result of Israeli deterrence and Palestinian self-interest. Israel therefore saw little incentive in upholding its end of the deal. In the three months following the ceasefire, its forces made regular incursions into Gaza, strafed Palestinian farmers and those collecting scrap and rubble across the border, and fired at boats, preventing fishermen from accessing the majority of Gaza’s waters.

The end of the closure never came. Crossings were repeatedly shut. So-called buffer zones – agricultural lands that Gazan farmers couldn’t enter without being fired on – were reinstated. Imports declined, exports were blocked, and fewer Gazans were given exit permits to Israel and the West Bank.

Israel had committed to holding indirect negotiations with Hamas over the implementation of the ceasefire but repeatedly delayed them, at first because it wanted to see whether Hamas would stick to its side of the deal, then because Netanyahu couldn’t afford to make further concessions to Hamas in the weeks leading up to the January 2013 elections, and then because a new Israeli coalition was being formed and needed time to settle in. The talks never took place. The lesson for Hamas was clear. Even if an agreement was brokered by the US and Egypt, Israel could still fail to honour it.

Yet Hamas largely continued to maintain the ceasefire to Israel’s satisfaction. It set up a new police force tasked with arresting Palestinians who tried to launch rockets. In 2013, fewer were fired from Gaza than in any year since 2003, soon after the first primitive projectiles were shot across the border. Hamas needed time to rebuild its arsenal, fortify its defences and prepare for the next battle, when it would again seek an end to Gaza’s closure by force of arms. But it also hoped that Egypt would open itself to Gaza, thereby ending the years during which Egypt and Israel had tried to dump responsibility for the territory and its impoverished inhabitants on each other and making less important an easing of the closure by Israel.

In July 2013 the coup in Cairo led by General Sisi dashed Hamas’s hopes. His military regime blamed the ousted President Morsi of the Muslim Brotherhood and Hamas, its Palestinian offshoot, for all of Egypt’s woes. Both organisations were banned. Morsi was formally charged with conspiring with Hamas to destabilise the country. The leader of the Muslim Brotherhood and hundreds of Morsi’s supporters were sentenced to death. The Egyptian military used increasingly threatening rhetoric against Hamas, which feared that Egypt, Israel and the Fatah-led Palestinian Authority would take advantage of its weakness to launch a co-ordinated military campaign. Travel bans were imposed on Hamas officials. The number of Gazans allowed to cross to Egypt was reduced to a small fraction of what it had been before the coup. Nearly all of the hundreds of tunnels that had brought goods from Egypt to Gaza were closed. Hamas had used taxes levied on those goods to pay the salaries of more than 40,000 civil servants in Gaza.

Hamas’s former allies and primary supporters, Iran and Syria, would not help it unless it betrayed the Muslim Brotherhood by switching its support in the increasingly sectarian Syrian war to the Alawite Bashar al-Assad against what had become an overwhelmingly Sunni opposition. Hamas’s remaining allies had their own problems: Turkey was preoccupied with domestic turmoil; Qatar was under pressure from its neighbours to reduce its support for the Brotherhood, which the other Gulf monarchies perceive as their primary political threat. Saudi Arabia declared the Brotherhood a terrorist organisation; other Gulf states continued to repress it. In the West Bank, Hamas couldn’t wave a flag, hold a meeting, or give a speech without facing arrest by Israel or the Palestinian Authority’s security forces.

With pressure mounting and no strong ally to turn to, Gaza’s descent was quick. Though Israel reacted to Egypt’s closure of tunnels and the pedestrian crossing by slightly increasing its own supply of goods and exit permits, there was no change in its fundamental policy. Electricity shortages increased, with daily blackouts lasting between 12 and 18 hours a day. Those in need of treatment in Egyptian hospitals paid bribes as high as $3000 to cross the border when it was occasionally opened for a day. Shortages of fuel led to queues stretching several blocks at petrol stations, and fights broke out at the pumps. Garbage piled in the streets because the government couldn’t afford fuel for refuse lorries. In December sanitation plants shut down and sewage flowed through the streets. The water crisis worsened: more than 90 per cent of Gaza’s aquifer was now contaminated.

As it became clear that unrest in Egypt wouldn’t lead to Sisi being ousted or to the return of the Brotherhood, Hamas saw only four possible exits. The first was rapprochement with Iran at the unacceptable price of betraying the Brotherhood in Syria and weakening support for Hamas among Palestinians and the majority of Sunni Muslims everywhere. The second was to levy new taxes in Gaza, but these couldn’t make up for the loss in revenue from the tunnels, and would risk stirring up opposition to Hamas rule. The third was to launch rockets at Israel in the hope of obtaining a new ceasefire that would bring an improvement in conditions in Gaza. This prospect worried US officials: it would undermine the quiescent Palestinian leadership in Ramallah and disrupt the Israeli-Palestinian peace talks that John Kerry had launched in the same month as Sisi’s coup. But Hamas felt too vulnerable, especially because of Sisi’s potential role in any new conflict between Gaza and Israel, to take this route. It was sure that the peace talks would fail on their own. The final option, which Hamas eventually chose, was to hand over responsibility for governing Gaza to appointees of the Fatah-dominated Palestinian leadership in Ramallah, despite having defeated it in the 2006 elections.

Hamas paid a high price, acceding to nearly all of Fatah’s demands. The new PA government didn’t contain a single Hamas member or ally, and its senior figures remained unchanged. Hamas agreed to allow the PA to move several thousand members of its security forces back to Gaza, and to place its guards at borders and crossings, with no reciprocal positions for Hamas in the West Bank security apparatus. Most important, the government said it would comply with the three conditions for Western aid long demanded by the US and its European allies: non-violence, adherence to past agreements and recognition of Israel. Though the agreement stipulated that the PA government refrain from politics, Abbas said it would pursue his political programme. Hamas barely protested.

The agreement was signed on 23 April, after Kerry’s peace talks had broken down; had the talks been making progress, the US would have done its best to block the move. But the Obama administration was disappointed in the positions Israel took during the talks, and publicly blamed it for its part in their failure. Frustration helped push the US to recognise the new Palestinian government despite Israel’s objections. But that was as far as the US was prepared to go. Behind the scenes, it was pressuring Abbas to avoid a true reconciliation between Hamas and Fatah. Hamas sought the reactivation of the long dormant Palestinian legislative council as a check on the new government. But the legislature contains a majority of Hamas members and the US warned Abbas that it would cut financial and political support for the new government if the legislature met.

The reconciliation agreement was unpopular inside Hamas. From the grassroots to the second highest tier of leadership, its members believed the deal would cause enormous problems. Moussa Abu Marzouk, a senior leader in its political bureau, spent weeks in Gaza meeting Hamas cadres, listening to their concerns and trying to convince them of the deal’s wisdom. Militants worried that Fatah security personnel would try to avenge the deaths that resulted from the fighting between Hamas and Fatah of 2006 and 2007, and start a new civil war. Hamas officials wanted assurances that the PA wouldn’t extend its collaboration with Israel against Hamas from the West Bank into Gaza. Employees of the government, thousands of whom aren’t Hamas members, worried about being fired, demoted or not being paid. Others said Hamas had conceded everything with no assurance that Fatah would fulfil its obligations. Among the rationales for signing the agreement provided by Hamas leaders was that it would allow the movement to focus on its original mission, military resistance against Israel.

The fears of Hamas activists were confirmed after the government was formed. The terms of the agreement were not only unfavourable but unimplemented. The most basic conditions of the deal – payment of the government employees who run Gaza and an opening of the crossing with Egypt – were not fulfilled. For years Gazans had been told that the cause of their immiseration was Hamas rule. Now it was over, their conditions only got worse.
*
On 12 June, ten days after the new government was formed, an unexpected event radically changed Hamas’s fortunes. Three Israeli students at yeshivas in the West Bank were kidnapped and murdered. When their bodies were found, a group of Israeli Jews abducted a 16-year-old Palestinian outside his East Jerusalem home, doused him in petrol, and burned him alive. Protests erupted among Palestinians in Jerusalem, the Negev and Galilee, while the West Bank remained relatively quiet. Israel blamed Hamas for the murders of the yeshiva students, though several Israeli security officials have said they believe that the perpetrators didn’t act on orders from above.

In its search for the suspected murderers, Israel carried out its largest West Bank campaign against Hamas since the Second Intifada, closing its offices and arresting hundreds of members at all levels. Hamas denied responsibility for the abductions and said Israel’s accusations were a pretext to launch a new offensive against it. Among those arrested were more than fifty of the 1027 security prisoners released in 2011 by Israel in exchange for the Hamas-held Israeli soldier, Gilad Shalit. Hamas saw the arrests as another violation of the Shalit agreement, which had named conditions under which the released prisoners could be re-arrested and contained unfulfilled commitments by Israel to improve conditions and visitation rights for other Palestinian prisoners.

The Palestinian leadership in Ramallah worked closely with Israel to catch the militants, and had rarely been so discredited among its constituents, many of whom believe abducting Israelis has proved the only effective means of gaining the release of prisoners widely regarded as national heroes. In several West Bank cities, residents protested against the PA’s security co-operation with Israel. A former minister of religious affairs who is close to Abbas went with his bodyguards to al-Aqsa Mosque; worshippers assaulted them, and they had to be hospitalised. When an Abbas emissary was dispatched to visit the murdered Palestinian boy’s grieving family, he was shouted off the premises.

As protests spread through Israel and Jerusalem, militants in Gaza from non-Hamas factions began firing rockets and mortars in solidarity. Sensing Israel’s vulnerability and the Ramallah leadership’s weakness, Hamas leaders called for the protests to grow into a third intifada. When the rocket fire increased, they found themselves drawn into a new confrontation: they couldn’t be seen suppressing the rocket attacks while calling for a mass uprising. Israel’s retaliation culminated in the 6 July bombings that killed seven Hamas militants, the largest number of fatalities inflicted on the group in several months. The next day Hamas began taking responsibility for the rockets. Israel then announced Operation Protective Edge.

For Hamas, the choice wasn’t so much between peace and war as between slow strangulation and a war that had a chance, however slim, of loosening the squeeze. It sees itself in a battle for its survival. Its future in Gaza hangs on the outcome. Like Israel, it’s been careful to set rather limited aims, goals to which much of the international community is sympathetic. The primary objective is that Israel honour three past agreements: the Shalit prisoner exchange, including the release of the re-arrested prisoners; the November 2012 ceasefire, which calls for an end to Gaza’s closure; and the April 2014 reconciliation agreement, which would allow the Palestinian government to pay salaries in Gaza, staff its borders, receive much needed construction materials and open the pedestrian crossing with Egypt.

These are not unrealistic goals, and there are growing signs that Hamas stands a good chance of achieving some of them. Obama and Kerry have said they believe a ceasefire should be based on the November 2012 agreement. The US also changed its position on the payment of salaries, proposing in a draft framework for a ceasefire submitted to Israel on 25 July that funds be transferred to Gazan employees. Over the course of the war, Israel decided that it could solve its Gaza problem with help from the new government in Ramallah that it had formally boycotted. The Israeli defence minister said he hoped a ceasefire would place the new government’s security forces at Gaza’s border crossings. Netanyahu has begun to soften his tone towards Abbas. Near the end of the third week of fighting, Israel and the US quietly looked away as the Palestinian government made payments to all employees in Gaza for the first time. Israeli officials across the political spectrum have begun to admit privately that the previous policy towards Gaza was a mistake. All parties involved in mediating a ceasefire envision postwar arrangements that effectively strengthen the new Palestinian government and its role in Gaza – and by extension Gaza itself.

Achieving the release of the re-arrested prisoners will be much more difficult. But if the war drags on and a deeper ground incursion becomes more likely, Hamas’s chances of capturing an Israeli soldier will increase. It has made at least four tries so far and may have succeeded in two of them; Israel denies the first was successful and, as this piece went to press, was searching for the second missing soldier. Few things would do more to discredit the Ramallah leadership than a new prisoner exchange deal with Hamas, even if on a smaller scale than the Shalit agreement. When Hamas announced it had captured a soldier on 20 July, crowds rushed to the streets of Gaza, Jerusalem and the West Bank, setting off fireworks and passing out sweets, with new hope that their friends and relatives in Israeli prisons would soon be released.

Palestinian protests in solidarity with Gaza have spread. Hamas flags outnumbered those of Fatah at a recent protest in Nablus. The Ramallah leadership, not altogether convincingly, has adopted some of Hamas’s rhetoric, using the word ‘resistance’ and praising Hamas’s fight. Clashes have taken place in the West Bank and East Jerusalem nearly every night. On 24 July, during the Muslim holy night of Laylat al-Qadr, the Qalandiya checkpoint in northern Jerusalem was the site of the largest demonstration on the West Bank since the Second Intifada. Hamas knows it can’t defeat the Israeli military, but the Gaza war holds out the possibility of a distant but no less important prize: stirring up the West Bank, and undermining the Ramallah leadership and the programme of perpetual negotiation, accommodation and US dependency that it stands for.

For many Palestinians, Hamas has once again proved the comparative effectiveness of militancy. Tunnels, which have been central to its successes in the current fighting, have been the source of attacks against Israelis in Gaza since well before Israel’s 2005 withdrawal. Hamas points to a series of tunnel-based attacks, including a deadly December 2004 explosion underneath an Israeli army post in southern Gaza, that helped precipitate Israel’s pullout. Since the fighting in Gaza began this summer, Israel has not announced a single new settlement and has expressed willingness to make certain concessions to Palestinian demands – achievements the Ramallah leadership has not been able to match in years of negotiations. The outcome of the fight will help determine the future path of the Palestinian national movement.

The real barrier to a West Bank uprising has not been, as Hamas has claimed, Abbas’s collaboration with Israel. It has been social and political fragmentation, and the widespread Palestinian acquiescence that national liberation should come second to the largely apolitical and technocratic projects of state-building and economic development. These are far greater obstacles for Hamas. To the extent that the recent fighting has instilled pride in Palestinians who say they’d grown accustomed to feeling shame at the way their leaders grovel at American and Israeli feet, Hamas’s achievement has not been small.

But Hamas has also risked a great deal. It stands to lose everything if Israel reassesses its long-standing reliance on it as Gaza’s policeman, a strategy that has led it to keep Hamas strong enough in Gaza to exercise a near monopoly on the use of force. An irony of the recent weeks of ground combat is that Hamas’s strong showing has put its position in Gaza at risk. Israel may decide it has become too big a threat. Hamas has slowed the Israeli ground incursion and inflicted dozens of losses on Israeli troops, far more than most expected. Two weeks after the ground incursion began, the IDF hadn’t made it past the first line of densely populated urban housing. Thanks to the vast underground tunnel network leading not just into Israel but under Gaza, if Israel decides to enter the city centres, its casualties seem certain to increase. During Operation Cast Lead in 2008-09, Israel went far deeper into Gaza and lost only ten soldiers, four of them to friendly fire; today Israeli ground forces have lost more than sixty soldiers. Losses among Hamas militants so far appear to be manageable. For the first time in decades, Israel is defending itself against an army that has penetrated the 1967 borders, by means of tunnels and naval incursions. Hamas rockets produced in Gaza can now reach all of Israel’s largest cities, including Haifa, and it has rocket-equipped drones. It was able to shut down Israel’s main airport for two days. Israelis who live near Gaza have left their homes and are scared to go back since the IDF says that there are probably still tunnels it doesn’t know about. Rockets from Gaza kept Israelis returning to shelters day after day, demonstrating the IDF’s inability to deal with the threat. The war is estimated to have cost the country billions of dollars.

The greatest costs, of course, have been borne by Gaza’s civilians, who make up the vast majority of the more than 1600 lives lost by the time of the ceasefire announced and quickly broken on 1 August. The war has wiped out entire families, devastated neighbourhoods, destroyed homes, cut off all electricity and greatly limited access to water. It will take years for Gaza to recover, if indeed it ever does.

And it seems unlikely that Hamas will be ready for another fight anytime soon. So it has every incentive to try to achieve its core objectives now, especially an end to Gaza’s closure. Mediators are aiming to help the people of Gaza without appearing to hand Hamas a victory and Israel a defeat. At stake for Israel and Egypt is what a purported Hamas victory says about the future of the Muslim Brotherhood in the region. At stake for the Muslim Brotherhood’s allies, Qatar and Turkey, is the meaning of a defeat. The perceived symbolism of the conflict has helped prolong it.

The obvious solution is to let the new Palestinian government return to Gaza and reconstruct it. Israel can claim it is weakening Hamas by strengthening its enemies. Hamas can claim it won the recognition of the new government and a significant lifting of the blockade. This solution would of course have been available to Israel, the US, Egypt and the PA in the weeks and months before the war began, before so many lives were shattered.

Wednesday, July 09, 2014

On Cruelty




Judith Butler

The Death Penalty: Vol. I by Jacques Derrida, translated by Peggy Kamuf
Chicago, 328 pp, £24.50, January, ISBN 978 0 226 14432 0

London Review of Books - Vol. 36 No. 14 · 17 July 2014

‘Whence comes this bizarre, bizarre idea,’ Jacques Derrida asks, reading Nietzsche on debt in On the Genealogy of Morals, ‘this ancient, archaic (uralte) idea, this so very deeply rooted, perhaps indestructible idea, of a possible equivalence between injury and pain (Schaden und Schmerz)? Whence comes this strange hypothesis or presumption of an equivalence between two such incommensurable things? What can a wrong and a suffering have in common?’ By way of an answer, he points out that ‘the origin of the legal subject, and notably of penal law, is commercial law; it is the law of commerce, debt, the market, the exchange between things, bodies and monetary signs, with their general equivalent and their surplus value, their interest.’

In the first volume of The Death Penalty, Derrida considers the jus talionis, the principle of equivalence according to which a relation is set up ‘between the crime and the punishment, between the injury and the price to be paid’. Debt, in On the Genealogy of Morals, gives Nietzsche a way of understanding how ‘the “consciousness of guilt”, “bad conscience”’ came into the world. Earlier he laments ‘that whole sombre thing called reflection’, in which the self becomes its own object of relentless scrutiny and self-punishment. If one wants to keep a promise, one must burn memory into the will, submit to – or submit oneself to – a reign of terror in the name of morality, administer pain to oneself in order to ensure one’s continuity and calculability through time. If I am to be moral and keep my promises, I will remember what I promised and remain the same ‘I’ who first uttered that promise, resisting any circumstances that might alter its continuity through time, never dozing when wakefulness is needed. The promise takes on another meaning in Nietzsche when what I have promised is precisely to repay a debt, a promise by which I enter into, and become bound by, a certain kind of contract. What I have apparently burned into the will, or had burned there, is a promise to remember and repay that debt, to realise the promise within a calculable period of time, and so to become a calculable creature. I can be counted on to count the time and count up the money to make the repayment: that accountability is the promise. I can count on myself, and others can count on me. If I prove capable of making a contract, I can receive a loan and be relied on to pay it back with interest, so that the lender can accumulate wealth from my debt in a predictable way. And if I default, the law will intervene to protect his interest in the interest he exacts from me.

Nietzsche asks how debt and restitution became the primary framework for conceptualising criminality and punishment. Tracking the persistence of Roman law in 19th-century German jurisprudence, he argues that any injury is conceptualised as a debt, and every punishment understood as a payment. Hence the field of suffering is pervasively economised, and the contract becomes the salient model for human exchange. According to Nietzsche, all manner of injury is now modelled on the creditor-debtor relation. As injury comes to be conceived as payment in default, the psyche develops a penitentiary logic. The psychic form that payment takes is guilt, understood as a kind of perpetual payment, the debt never finally discharged. Punishment thus becomes a form of subjectivation: in punishing the criminal for having inflicted an injury/incurred a debt, a subject is formed who punishes her or himself for having failed to be calculable. And if she or he had proven to be calculable, would no injury have occurred? Not quite, for the only way to become a promising and calculable animal, according to Nietzsche, is precisely by inflicting injury on oneself, burning a memory into the will such that the memory burns time and again, every time the promise is broken and all the time until the promise is fulfilled.

Guilt becomes the psychic modality of the debtor who can neither quit nor fulfil the contract. What, then, is the psychic modality of the creditor? Nietzsche remarks on those Roman laws that allowed for debtors to be dismembered by their creditors or their legal proxies. Derrida continues the thought:

“The creditor is granted a psychic reimbursement … Instead of a thing, instead of something or someone, he will be given some pleasure, some enjoyment [jouissance], a feeling of well-being or greater well-being (Wohlgefuehl), he will be given a pleasure that consists in the voluptuous pleasure of causing the other to suffer … ‘faire le mal pour le plaisir de le faire,’ that is, of doing harm for the pleasure of it … In place of some equivalent, something or someone, one grants in return, as payment, the pleasure of doing violence (Genuss in der Vergewaltigung).”

And though Derrida accepts the translation of Vergewaltigung as ‘violence’ (usually Gewalt), it is also the German word for ‘rape’, raising the problem of whether it is possible to distinguish between sexualised and desexualised forms of destructiveness in forms of legal punishment. Indeed, the move to cast injury as a debt that requires restitution produces both guilt and sadism: the debtor becomes the one who is always paying in a situation in which nothing can finally be paid off; the creditor is always punishing, and always enjoying that apparently infinite task. The idea of equivalence, introduced first by jus talionis, allows one thing to substitute for one another by way of restitution. The point, though, seems not really to become whole again, but to profit and punish more joyfully for an indefinite period of time. Keeping his parts circulating is what brings the creditor his pleasure, and punishing debts, establishing them as unpayable, opens up a potentially infinite future for sadistic delight. The prison is established on the model of social debt, so that sentencing becomes a way of regulating, and extending, the time of debt.

For Nietzsche, and in this Derrida follows him closely, legal punishment, apart from serving its stated purposes, maintains a furtive vocation in which sadism operates through the terms of both law and morality. Nietzsche found that cruelty – indeed, ‘festive cruelty’ – pervaded these two domains. This is explicit in Bentham’s reflections on punishment, but it can also be found operating in a more subtle fashion in Kant’s categorical imperative, which, Nietzsche claimed, ‘reeks of [reicht von] cruelty’. When Kant justifies the death penalty on the basis of the categorical imperative, he demonstrates the Nietzschean point that cruelty can be, and is, masked as morality, and that the pleasure in inflicting cruelty can be, and is, rationalised as moral duty. Presaging Lacan’s ‘Kant avec Sade’, Nietzsche seeks to expose the joyous cruelty of Kant’s morality. Derrida takes it all a step further, figuring Meursault, the absurdist murderer in Camus’s L’Etranger, as a paradigmatic Kantian:

“If I know why I kill, I think I am right to kill and this reason that I give myself is a reason that one must be able to argue for rationally with the help of universalisable principles. I kill someone, and I know why, because I think that it is necessary, that it is just, that whoever found himself in my place would have to do the same, that the other is guilty towards me, has wronged me or will wrong me and so forth … given that the crime is meaningful, deliberate, calculated, premeditated, goal-oriented, it belongs to the order of penal justice and is no longer dissociable from a condemnation to death, from a properly penal act. At that point, the distinction between vengeance and justice becomes precarious.”

But Nietzsche also writes something more, namely that commercial contracts model the social contract, which requires that humans undergo an internalisation of their aggressive drives. What is internalised or, indeed, repressed by entering into the social contract is ‘hostility, cruelty, joy in persecuting, in attacking, in change, in destruction’. This internalisation can operate as sublimation, giving rise to the soul, the entire inner world, bad conscience and guilt – everything that makes man interesting. The development of this capacity comes at a very high price, what some would call neurosis, and what Nietzsche describes as that ‘serious illness that man was bound to contract under the stress of the most fundamental change he ever experienced – that change which occurred when he found himself finally enclosed within the walls of society and of peace’. The social contract, which requires the subject to forfeit the option of acting aggressively and destructively, produces a psychic formation in which the subject pummels her or himself and thereby risks becoming her or his own executioner.

Can those who oppose the death penalty escape cruelty? Nietzsche intimates that cruelty may well be primary. It can be repressed, which is a way of turning cruelty on oneself, or directed towards others in some moralised version, for example by preferring imprisonment to the death penalty (protracted cruelty, that is, over immediate death). The prohibition on aggressive action is an aggressive attack on aggression which paradoxically preserves, or redoubles, aggression even as it seeks its eradication. No one can finally do away with it. ‘The figure of abolition,’ Derrida writes, ‘is that of a death of the death penalty.’

*

Derrida turns to Freud’s reflections on aggression and the death drive in order to pursue this broader question about cruelty. Beyond the Pleasure Principle calls into question the exclusive operation of the pleasure principle as the organising principle of psychic life. Are there modes of destructiveness that can’t be explained by the pleasure principle? The death drive emerges as a way of explaining repetition compulsions that fail to establish any kind of sustainable mastery. They appeared to Freud first as part of ‘war neurosis’ and were set apart from forms of neurosis organised by wish-fulfilment. These forms of compulsive repetition were not in search of gratification: they were unwanted repetitions that wore down the ego. Derrida is frank: ‘At issue is a diagnosis of a cruelty that has no contrary because it is originary.’ This dialectical inversion characteristic of bad conscience – the redoubling of aggression in the effort to establish its opposite – proves important for Derrida’s approach to the death penalty and to abolitionism.

For Derrida, those who oppose the death penalty – as he did – are caught up in the same problem as those who are for it, but why? Are abolitionists perhaps seeking to eradicate the death drive – the ‘hostility to life’, as Derrida puts it, that is ‘inherent to life itself’? Is that their furtive purpose? ‘Surpassing cruelty by an apparent non-cruelty,’ he continues, ‘would be merely a surpassing in cruelty, a surfeit of cruelty.’ He notes that Robespierre changed his mind from opposing to affirming the death penalty in the space of two years, depending on what seemed more useful to him – whether he feared for his own life or wished for the death of his opponents. Those who oppose the death penalty, such as Beccaria and sometimes Bentham, seem to prefer a long, drawn-out form of cruel imprisonment, which raises the question: which camp in this debate stands for the more humane form of punishment? Wary of forms of aggression disguised as benevolence, Derrida asks whether some abolitionists are committed to other forms of cruelty that are masked by elegant moral formulations, ones that rationalise prolonging the time of cruelty and the tenure of sadistic delight.

Just as Nietzsche found Kant’s categorical imperative to be soaked in blood, so Freud thought that the Christian dictum ‘love thy neighbour as thyself’ was pretty much impossible to realise. Why should my neighbour love me? he asks. And why should I love my neighbour? ‘It is very probable that my neighbour, when he is enjoined to love me as himself, will answer exactly as I have done and will repel me for the same reasons.’ Freud suggests that we can only really love those we know and that it is absurd to ask us to love the rest of humankind: hostility seems a more reasonable default position.

What seems to be at stake here is neither a random attitude of hostility nor even an occasional propensity towards cruelty, but the broader problem of the death drive. In Beyond the Pleasure Principle and then in Civilisation and Its Discontents, written ten years later, in 1930, Freud writes about a kind of destructiveness that seeks to dismantle social forms constructed on the basis of aim-inhibited social bonds, such as family, community and nation. He remarks on several occasions, in particular when considering the ambivalence constitutive of love, that the pleasure principle and the death drive work in tandem, but they should be distinguished nonetheless in terms of their final aims. In Beyond the Pleasure Principle Freud makes two inverse kinds of claim about the relationship between pleasure and the death drive: first, he gives the example of sadism, in which the death drive ‘enters the service of the sexual function’; second, just pages later, ‘the pleasure principle seems actually to serve the death instincts,’ which are ‘especially on guard against increases of stimulation from within, which would make the task of living more difficult’. So each can be at the service of the other, which means that neither is necessarily primary. The death drive leads us towards death, in a circuitous return to the inorganic that militates against a progressive sense of time, repeatedly taking apart the social relations we build and returning us to a state of quiescence. So the two drives – or principles, if you prefer – seem to meet up again in this final quiescence in which all that is built is undone, scattered, returning the fading ego to an inorganic condition in which the organism is relieved of all excitation.

We know that civilisation produces unhappiness because social norms demand that we not act on all the desires on the docket for gratification. Ideally, aim-inhibited social bonds create communities, and the sublimation of immediate desires creates artworks or institutions or works like Freud’s. But the other problem with civilisation is that it seems actively to dismantle what it has built, to destroy what one brings into being and to attack those one loves; it takes aim at its own creations and attachments, pursuing a furtive vocation – repetitive, unknowing – that works in a contrary direction to its forward-oriented tasks and all conceits of progress. Freud ends Civilisation and Its Discontents, remarking that civilisation runs the risk of being undone by its own aggression, going so far as to voice his anxiety about the prospect of extermination.

A brief passage in the book proves quite important for Derrida’s argument. Freud is writing about the death penalty: ‘One is irresistibly reminded of an incident in the French Chamber when capital punishment was being debated.’ (I take it that this is the 1790s.) ‘A member had been passionately supporting its abolition and his speech was being received with tumultuous applause, when a voice from the hall called out: “Que messieurs les assassins commencent!”’ It is as if the call to let the assassins begin their work is of a part with the passions aroused by abolitionist discourse itself. Are abolitionists like anti-pornography campaigners who end up exciting their supporters with their graphic descriptions of the porn they would get rid of? Abolitionism has a different problem, since here it isn’t so much desire but the death drive that cloaks itself in moral opposition to its own expressions. Does Derrida’s reading suggest that opposition to the death penalty can quickly be converted into its opposite, unleashing a celebratory affirmation of its destructiveness?

Derrida rehearses Baudelaire’s criticism of Hugo’s abolitionism in ‘The Last Day of a Condemned Man’ (1829), in which the argument is made that the death penalty should be opposed because the right to life is absolute. Abolitionism in defence of an absolute right to life is, for Baudelaire, as Derrida reminds us, ‘doubly guilty’: it clings to animal existence and abandons the human. The passion of those who oppose the death penalty is guilty, he remarks, ‘because they are afraid for their own skins, because they feel guilty and their tremulations are a confession; they confess, with the symptom of their abolitionism as it were, that they want to save their lives, that they tremble for themselves because … unconsciously, they feel guilty of a mortal sin.’ So the passion against the punishment is articulated by those who are guilty not for what they do, but for what they wish they did not wish – to do away with someone. But also because they fear losing their own lives, so formulate their position not from principle, but from fear of being done away with by another: ‘I want to abolish the death penalty because I am afraid of being condemned.’

Derrida’s move to expose the way that the abolitionists are implicated in the death drive has a certain intellectual appeal, resting as it does on a dialectical inversion by which those who oppose the death penalty are implicated in its cruelty, especially when they prefer forms of imprisonment. (At one point he generalises from the case of abolitionism, remarking on ‘the hypocrisy that animates and agitates the defenders of just causes’.) Here is a rejoinder. Derrida’s position implies that the only route to an abolitionist position is through the violent suppression of the aggressive impulse, a redoubling of aggression that is now conveyed and amplified by moral instruments. But given that aggression can be interrupted by more relational orientations, why wouldn’t opposition to the death penalty emerge from those? The pleasure principle intervenes to derail aggression time and again, and I have noted already that for Freud the death drive can be brought within the service of the pleasure principle, and that pleasure can serve the purpose of creating and reproducing social bonds. In the context of preserved social bonds, aggression can become agonism, or it can be strictly contained within the rules of a game: a sadomasochistic sexual scene, for example, or some other rule-bound activity.

But there is a more general argument to be made, concerning Freud’s idea of emotional ambivalence. This idea is there early on in his interpretations of Hamlet in The Interpretation of Dreams; it gets a chapter in Totem and Taboo and is central to the explanation of melancholia in ‘Mourning and Melancholia’. After 1920, it is recast as a mode of entanglement between the pleasure principle and the death drive. There is no overcoming ambivalence in love, since we are always at risk of destroying what we are most attached to and vulnerable to being destroyed by those on whom we are most dependent. According to this later model, Oedipus doesn’t necessarily kill the father in order to have the mother (that would be to posit wish-fulfilment as the final aim of all murderous wishes); he could be moved by various unconscious motives in killing the father, and sexual gratification may or may not be among them.

So the problem with Derrida’s dialectical inversion is that it relies on the death drive, or its principal exponent, aggression, as the only motive operating in the scene. What ethical decisions emerge from the ambivalent situation of wanting someone to die and at the same time wanting them to live, and even wanting both things with equal intensity, but at different levels of consciousness? Ambivalence isn’t quite the same as hypocrisy. I am a hypocrite if, however furtively, I want someone to die, or am possessed by a murderous wish even as I cloak that wish in a moral argument, say, against the death penalty. I am a hypocrite only if there is a wish I pretend I do not have, but in fact do. In the condition of ambivalence, however, there are at least two wishes at work, two true motives struggling to coexist despite their incompatibility. What then works against the inner demand that someone pay for a crime with his or her life? Is it only when we might enjoy inflicting further pain on the criminal that we wish she or he would live? Or are there other reasons why we might want them to live? Are there, even within the terms of psychoanalysis, reasons for wanting to keep the other alive that do not primarily rely on our wish to continue torturing that other, even when it isn’t someone in particular, but an anonymous other or the general population?

To answer that question, we have also to ask whether there are social relations outside the terms of debt and payment, relations that might be understood as being outside capital, or outside the psychic and moral terms by which injury-cum-debt authorises incarceration and the death penalty. This is already to move from a drive theory to an account of relationality, but that doesn’t mean we can dispense so easily with the problem of destructiveness. After all, when Freud posits Eros and Thanatos as two separate principles, as drives which belong to the figural language available to him, he is trying to take account of ambivalence. Eros may well be defined as building social bonds through sublimation, but love, we should remember, is also constituted by ambivalence. This is the very point from which Melanie Klein departs, suggesting that the ambivalence of all human bonds is the basis of an ethical demand to preserve precisely the life it is in one’s power, and sometimes also in one’s interest, to destroy.
‘The power of love – which is the manifestation of the forces which tend to preserve life – is there in the baby as well as the destructive impulses,’ Klein writes in ‘Love, Guilt and Reparation’. The fantasy of destroying becomes coupled with the fear of losing those on whom one is absolutely dependent. To do away with the one on whom I depend for food and shelter and survival is to imperil my own existence. The ‘fear of losing’ emerges time and again in Klein: ‘There is … in the unconscious mind a tendency to give [the mother] up, which is counteracted by the urgent desire to keep her for ever.’ This form of ambivalence emerges developmentally as an emotional bind when individuation isn’t complete. But since individuation is never complete, and dependency never really overcome, a broader ethical dilemma emerges: how not to destroy the other or others whom I need in order to live. It isn’t a matter of calculating that destroying them would probably be a bad idea. Rather, it is a matter of recognising that dependency fundamentally defines us: it is something I never quite outgrow, no matter how old and how individuated I may seem. And it isn’t that you and I are the same; rather, it is that we invariably lean towards and on each other, and it is impossible to think about either of us without the other. If I seek to preserve your life, it is not only because it is in my self-interest to do so, or because I have wagered that it will bring about better consequences for me. It is because I am already tied to you in a social bond without which this ‘I’ cannot be thought. So, what implications does the thesis of emotional ambivalence in love have for thinking about alternatives to the death penalty and for legal violence more generally? Is there a way to move beyond the dialectical relation between the punishment of the death penalty and the life sentence?

*

Following Benjamin’s ‘Critique of Violence’, Derrida underscores the toxic intimacy between crime and its legal remedy. The law distinguishes between legitimate and illegitimate forms of the death penalty, establishing the procedures by which that distinction is made. It also establishes the grounds on which the state can inflict deadly violence either in war or through such legal instruments as the death penalty. The death penalty, for Derrida, considered as a form of legal violence, closes down the distinction between justice and vengeance: justice becomes the moralised form that vengeance assumes.

It’s striking that this view is held in common by Derrida and the activist and scholar Angela Davis. Both called for the retrial or release of Mumia Abu-Jamal (a political prisoner sentenced to death in 1982 for the murder of a policeman: his sentence was commuted to life imprisonment without parole in 2012), arguing that his overarching ‘crime’ was his affiliation with the Black Panthers. Davis understands the alternative between the death sentence and imprisonment as dialectical:

“As important as it may be to abolish the death penalty, we should be conscious of the way the contemporary campaign against capital punishment has a propensity to recapitulate the very historical patterns that led to the emergence of the prison as a dominant form of punishment. The death penalty has coexisted with the prison, though imprisonment was supposed to serve as an alternative to corporal and capital punishment. This is a major dichotomy. A critical engagement with this dichotomy would involve taking seriously the possibility of linking the goal of death penalty abolitionism with strategies for prison abolition.”

Like Davis, Derrida understands that the death penalty and imprisonment are hardly opposites, but form two modalities of an economy of vengeance. When the state kills, and justifies doing so, it enacts vengeance through its reasoning process; legal violence becomes no different from non-legal violence, except that now the state performs the act and supplies its justification. But for Davis, the task is to move beyond vengeance. Her mentor was at one time Herbert Marcuse, who in Eros and Civilisation, his rejoinder to Civilisation and Its Discontents, suggested that Eros might be expanded to create forms of community that would counter the force of Thanatos, or the death drive augmented under capitalism. He referred to the surplus aggression created under capitalism, and suggested that Freud was describing a very specific social organisation of aggression, not a pre-social death drive. He also thought that revolutionary energy, as it were, could be marshalled against repressive institutions, among them capitalism and the family. There is no drive theory in Davis’s work, as far as I know: both sexuality and aggression are socially organised. At the same time, however, there is a clear understanding that political resistance has both to build and destroy. There is no way of getting round that double demand. Davis calls for the abolition not only of the death penalty but of the institution and industry of imprisonment. The negation of exploitative and violent institutions makes use of destructiveness, but also seeks to establish and strengthen social bonds through repair and ‘restorative justice’ rather than vengeance and retribution.

If we stay within the problem of cruelty’s relation to the death drive, we may wonder to what extent the death drive, or aggression, can be fully directed by conscious political programmes such as those proposed by Davis, and whether there is always an excess to destructiveness that can’t quite be controlled or explained by the social organisation of life. The important question here seems to be whether social bonds should be understood within the framework of civilisation, or in some other way. As Freud makes clear in Civilisation and Its Discontents, civilisation will hardly save us: the moral face of civilisation, after all, is vengeance, and prisons are its exemplary institutions. In their place, Davis imagines communities that focus on healing and repair, on forms of responsibility that forge new social bonds for those who may have broken them. These bonds would be explicitly anti-capitalist, and would put an end to racist forms of exploitation. She insists that in the United States, both prisons and the death penalty have to be understood as part of the legacy of slavery, given that the disproportionate number of people in prison and on death row in the US are black or Latino men and, increasingly, black or Latino women. (The NAACP reports that African Americans ‘now constitute nearly a million of the total 2.3 million incarcerated population. African Americans are incarcerated at nearly six times the rate of whites. Together, African American and Hispanics comprised 58 per cent of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the US population.’ Those numbers have increased in recent years. In the US today more than three thousand people are on death row, all of them poor, and most of them African American or Latino.) Davis also argues that love and forgiveness must be pursued as alternatives to retribution. This is not to imply that there is no destructiveness in this picture, but that it takes the form of ‘negating’ prisons, whose form of destructiveness damages life that ought properly to be repaired and even restored to a broader social world.

Are we really so far from the death drive here? What if we understand the death drive not only as manifested within the individual psyche, or in terms of group psychology, but as something that takes hold of institutions and guides their aims, sometimes with furtive tenacity? The call for an end to imprisonment and to prisons may not be possible, or practical, but it establishes a perspective from which we can see the way that legal remedy is engaged in cruelty. To call for an end to cruelty is to call for the destruction of the institutions of cruelty; the only question that remains is whether it would be possible to control the destructive effects that would follow from the deinstitutionalisation of criminals. The fact is that the destructive consequences of acts that seek to destroy destruction can’t be fully known in advance. This is, perhaps, where Freud on the unconscious operation of the death drive seems to have the last word, indicating a future of destruction whose exact contours we can’t know, but about which we can only feel anxiety.

For Davis, abolitionism refers to the demand to abolish both the death penalty and prisons, but also to the abolition of slavery, which remains a global phenomenon, active not only in the sweatshops of the developing world but also in coerced agrarian work in the US. Prisons too continue the legacy of slavery, acting now as the institutional mechanism by which a disproportionate number of people of colour are deprived of citizenship. The fact that the death penalty is disproportionately applied to people of colour implies that it is a way of regulating citizenship by other means and, in the case of the death penalty, concentrating state power over questions of life and death that differentially affect minority populations. Yet this power is not simply or exclusively sovereign. With the idea of a demographics of the condemned, we enter the terrain that Achille Mbembe has called ‘necropolitics’. That security companies have taken over the public administration of prisons in the US, the UK and elsewhere exposes the link between who is owned, who is put out of play, whose unpayable economic or social debt now defines who they are – and who profits. ‘The people’, the public, are established as those who must be protected from the criminal class, producing one class of people whose lives are worth preserving, and another whose lives can be easily lost or destroyed.

Does debt forgiveness enter into this picture? What would be its psychic equivalent? Would it perhaps be the operation of ‘pardon’ as a deinstitutionalising force, including the deinstitutionalisation of sovereignty and the death penalty? Derrida’s reflections on ‘pardon’ were the focus of his seminar in 1997-99, directly preceding his seminar on the death penalty. One question raised was whether forgiveness and pardon must be figured as sovereign acts, or can be ways of deconstituting established forms of sovereignty. Is there a way to conceptualise forgiveness and pardon as forms of institutional life, perhaps as the driving force that undertakes the deinstitutionalisation of both the prison and the death penalty? Perhaps the opposition to the death penalty has to be linked with an opposition to forms of induced precarity both inside and outside the prison, in order to expose the various different mechanisms for destroying life, and to find ways, however conflicted and ambivalent, of preserving lives that would otherwise be lost.

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