[News] How to Argue Against Torture

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Wed Jul 22 12:48:19 EDT 2009


July 22, 2009

Always Wrong; Always Illegal; Always Unjustifiable

How to Argue Against Torture


A signatory to the UN Convention Against Torture, 
the United States "does not torture." Yet 
abundant evidence indicates that it does, 
directly or by proxy­and in fact always has. An 
old American tradition of state-sponsored torture 
even has its own lexicon: SOA, Kubark, Phoenix, 
MK-Ultra, rendition, CIA's "no-touch" paradigm, 
etc. It is quite popular, too. Torture enjoys 
more than twice the public support in the US that 
it does in France, Spain, and the UK. One of the 
most watched TV dramas, 24, is but an extended 
ode to the glories of torture. The former 
director of a prominent human rights center at 
Harvard writes of the judicious use of sleep 
deprivation, hooding, and targeted 
assassinations; he concedes the government's need 
to "traffic in evils." The nation's most 
celebrated defense attorney recommends "torture 
warrants" and "the sterilized needle being shoved 
under the fingernails" ("sterilized" because he 
is a liberal). The most cited legal scholar in 
the land writes: "If the stakes are high enough, 
torture is permissible. No one who doubts that 
this is the case should be in a position of responsibility."

Anti-torture voices have been left sounding 
defensive, insecure, incoherent. Yet, while 
boasting the world's highest incarceration 
numbers and supermax prisons characterized by a 
warden as a "clean version of hell," the US has 
also begun to question its tolerance of torture. 
The debate is on, and torture is winning. I 
intend here to lay the foundation for a strong, 
cogent anti-torture position. It rests upon three principles:

Torture is always wrong;
Torture must be banned by law unconditionally;
Not all torture decisions should be morally codified.

The first two principles reject torture on moral 
grounds (it's wrong) and legal ones (it's bad). 
Unfortunately, they do not imply that one should 
never torture. If, indeed, our only choice is 
between two acts that are immoral, these two 
rules alone won't tell us what to do. This 
central dilemma arises in principle­we can all 
imagine ourselves in an extreme situation about 
which we cannot say with certainty that we would 
not torture­but does it arise in practice? Many 
say, with some justification, that it does not. 
Whatever the case may be, there is a hefty price 
to pay for dismissing the central dilemma on 
implausibility grounds, as many liberals are wont 
to do. Once the improbable is deemed morally 
irrelevant, torture can no longer claim the 
status of absolute wrong, for there is no such 
thing as an "absolute-wrong-in-practice." Any 
serious condemnation of torture must account for the central dilemma.

Hence my third principle. It stipulates that no 
ethical code (ie, universal decision procedure) 
should tell a would-be torturer what to do in all 
situations. This is to avoid rationalization and, 
beyond it, the dilution of moral responsibility 
in the hypothetical case where not to torture is 
no less an immoral option than to do so (the 
central dilemma). The third principle is a point 
of meta-ethics. It is not a moral rule per se, 
but a statement about the inapplicability of 
moral rules. It is designed to overcome the 
justificatory purposes embedded in any ethical 
code. One may object that the central dilemma 
arises with any moral wrong, so why single it 
out? Because it lies at the core of the "torture 
issue" itself, which, with the wide support it 
enjoys, is indeed an issue. How to aggregate 
universal moral principles into decision 
procedures, a central problem in ethics, is in my 
view the only interesting aspect of the torture 
question; the rest is straightforward.

Like many, I feel strongly enough about torture 
to find the very notion of a "torture debate" 
distasteful. But sentiment alone means nothing. I 
feel strongly about racism, too. But racism is 
not wrong because it offends my sensibilities. It 
is wrong because it violates reason and human 
dignity. Likewise, if we cannot offer a reasoned 
account of the absolute wrongness of torture 
(especially given the wide public support for it) 
then our impassioned opposition, indispensable 
though it may be, will still be, strictly 
speaking, meaningless. It also matters because 
one cannot fight effectively for a cause one does 
not understand. Is it a coincidence that torture 
has remained so popular in this country amidst 
such an impoverished public discourse?

I. Why Torture Is Always Immoral

What is torture? "I know it when I see it" is a 
fine answer and rough agreement with common 
intuition will do. Supermax incarceration and 
prison rape can be construed as institutionalized 
forms of torture. For the purpose of this essay, 
however, I narrow down the definition to the 
forced exchange of information for the relief of 
unbearable pain. Much like slavery, torture is 
coerced trade. To many, its abhorrence requires 
no empirical evidence: it is a priori, intuitive, 
and visceral. So much so, in fact, that even 
asking why seems immoral, as if merely speaking 
of a ghost might make it appear.

But, if torture is so evil, why is it so hard to 
explain why? Let's try. Some say a society that 
allows torture loses its soul and brings shame on 
its members. This is true, but it explains 
nothing­at least no more than calling murder 
wrong because it makes you a bad person. A line 
often heard is that torture does not work. Never 
mind the fragility of a proposition that is both 
unprovable and falsifiable. Even if true, this 
claim is a gift to the torturers: "Make it work, 
Mr Inquisitor, and the moral turf is yours." It's 
like rejecting slavery because "it does not work" 
or opposing cannibalism on nutritional grounds. 
Consequentialism is thin gruel against torture. 
Beware of the sentence that ends with the words, 
"therefore torture is evil." Better for it to 
start, "Torture is evil, therefore..."

This brings us to the deontological perspective. 
Do we recoil from torture because it treats a 
person only as a means to an end? It is a 
principled view that might account for our 
rational rejection of torture, but Kant's 
Categorical Imperative is too much at variance 
with Anglo-American norms to explain the 
instinctive revulsion the practice commonly 
elicits. (As the death penalty illustrates, note 
that popularity does not contradict abhorrence.) 
In his paeans to torture, Dershowitz is merely 
echoing Bentham and, beyond it, the reigning 
utilitarianism of our time, which, from 
conditional welfare to advertising, routinely 
flouts Kantian ethics. And yet, is there a doubt 
that the wrongness of torture finds its source, 
not in a holy book or in the final link of a 
chain of observations, but deep in humanity's 
moral intuition? On this we all agree.

Or do we? Few would argue that waterboarding 
Khalid Sheikh Mohammed was worse than shooting 
him in the head. Yet killing does not make us 
wince the way torture does. Why? Could it be the 
excruciating pain? Doubtful. Baby Mohammed lost 
both legs during Shock-and-Awe and, over a 
10-hour period, bled to death stuck in the debris 
of his home, a horror entirely foreseen in its 
outline, if not its particulars, by the 
architects of the war. The baby's pain vastly 
exceeded that of his namesake. Yet if Rumsfeld 
must one day cross Europe off his travel plans, 
it will be because of Khalid Mohammed, not baby 
Mohammed­despite the former SecDef's direct 
responsibility in the latter's agony. Pain and 
death do not explain why torture feels so evil.

Then what does? Perhaps the deadly mix of fear, 
humiliation, abandonment, and open-ended sadism 
that the practice connotes. The torturer never 
says, "I go home at 5." Torture stirs in all of 
us the age-old anxiety of a cruel deity that 
keeps us forever conscious to suffer an endless 
agony. Pain, like relativity, distorts time. (A 
root-canal patient can tell you all about 
eternity.) Past a certain point, the victim's 
fear is no longer that he will die but that he 
won't. Torture is a window into hell, with a 
satanic god cast as a human sadist. I believe one 
cannot grasp the role of torture in the 
imagination without integrating its metaphysical 
resonance. Torture rehearses eternal damnation. 
And that's not a good thing, because hell scares 
the hell out of everyone, even those who don't believe in it.

To add insult to injury, the torturer reflects 
back to us a magnified image of that repressed 
speck of sadism buried in all of us. This did not 
always bother us. God gave Moses not one but two 
commandments against lust, and not a single one 
against cruelty; likewise, Augustine deemed 
cupidity a more serious offense. It was not until 
Montaigne and Montesquieu that cruelty acquired a 
special status in moral philosophy. Our revulsion 
toward torture is hardly universal­children can 
be astonishingly cruel to animals­but, rather, 
the sign of a certain liberal disposition. 
Torture offends us through its frontal assault on 
human dignity. Beyond subverting free will into 
"anti-will"­your being tortured does not simply 
violate you: it makes you violate yourself­it 
denies something even more fundamental than 
freedom: personhood. It dehumanizes not only the 
victim and the torturer, but society as a whole. 
Or so our modern liberal sensibilities tell us.

II. Why Torture Should Always Be Illegal

Should torture be legalized in exceptional 
circumstances? The answer is an unequivocal no. 
The ban must be unconditional. Why? Because 
grotesquely evil behavior must be criminalized? 
Pleasing though it may be, this simple answer 
won't do. We must first examine whether there 
might not be a utilitarian reason to make legal 
exceptions. (Even the most committed deontologist 
will recognize the need to test laws against 
their consequences.) I will show that there is no 
room for exceptions by revisiting the three 
arguments central to the issue: TBS, 
self-defense, and torture creep. I'll also 
discuss the criminal prosecution of torturers.

The ticking bomb scenario (TBS) would appear to 
beg for an exception­see for a definition. (I'll 
assume the usual conditions of imminence, 
gravity, proportionality, and certainty, without 
which TBS is not worthy of consideration.) The 
first issue to address is consistency. TBS 
advocates often lack the courtesy to grant the 
same rights to their enemies. They remain oddly 
silent on whether, say, the Taliban would be 
entitled to torture captured American soldiers 
thought to know about imminent drone attacks. 
There might appear to be a normative basis for 
the double standard. After all, we're the good 
guys and they're not, so why should we grant them 
the same moral latitude? That's nonsense. Our own 
code of warfare, such as it is, dictates that it 
apply equally to both sides­as do the Geneva 
Conventions. Whether it should be so or not is an 
interesting philosophical question, but in 
practice this point is already settled.

The legal issue hangs on the "rarity principle." 
We all see the need for a law against murder. But 
do we need a law for a bad act that happens at 
one millionth the rate of murder? Probably not. 
Legality should offer only a blurry reflection of 
morality, not its mirror image. Whereas morals 
delineate complex fractal lines, laws should 
follow smooth contours free of singularities. As 
the saying goes, "Hard cases make bad laws." This 
is not a weakness of the law but a strength: 
that's how it can be both universal and 
enforceable. TBS theorists will agree but say: 
"Look, 1,000,000/1,000,000 = 1, so an action 
likely to cause one million deaths at one 
millionth the rate of murder matches the expected 
harm of murder, and hence merits its own law; 
ergo, legalize torture. QED." A three-word 
refutation: Break the law. No one's yet suggested 
a new speed limit sign: "55 ­ Unless You're 
Taking Your Dying Uncle To The Hospital." Speed 
up if you must, and pay the price later. Tucking 
exceptions into law is courting the same trouble 
as overfitting a machine learning classifier, ie, 
loss of generalizing power and diminished appeal to universality.

Self-defense was invoked in the infamous Bybee 
"torture memos." On the face of it, this is 
preposterous. A torture victim is not a threat. A 
captive terrorist such as Khalid Sheikh Mohammed 
is a culpable bystander, not a culpable 
aggressor. Therefore, first, the argument would 
need to appeal to self-preservation and not 
self-defense; second, this in turn would crash 
against the accepted legal doctrine that 
bystanders, even guilty ones, may not be hurt 
intentionally. Perhaps a legal argument of 
"distributive" justice could be made that, if 
harm is unavoidable, it is preferable to inflict 
it on the guilty party if there is the option. 
But, by that logic, a gunman who shoots you might 
be forced to give you his organs to save your 
life: if one life has to go, hey, guess which 
one? Trouble is, this constitutes a brand of 
justice far too alien to our own to be 
acceptable. To that normative consideration, I 
would also guard against the slippery notion of 
"collective self." Most aggressive wars in 
history have been fought in the name of 
self-defense. This might then justify the torture 
of war prisoners when one's country is under 
attack, thus losing the classical distinction 
between jus ad bellum (why one may go to war) and 
jus in bello (how one may fight a war). Even if 
all other options have been tried, the torture of 
terrorists cannot be called self-defense.

The case of individual, non-state sponsored TBS 
is not as clear-cut. You're entitled to stab a 
man on self-defense grounds if you see him break 
into your house and try to strangle your 
daughter. (No one will dispute that your "self" 
may extend to her.) So why can't you do the same 
if he refuses to divulge her location after he's 
kidnapped her and buried her alive with 20 
minutes left to live? Simple: because the man is 
not attacking your daughter. But isn't his 
silence every bit as much a weapon as his hands? 
After all, he can wield either one at will to 
decide her fate. One can draw two distinctions, 
neither of which resists scrutiny.

The first one is epistemic: your belief that the 
man knows the burying location of your daughter 
and that she is still alive cannot match the 
certainty of your witnessing her strangulation. 
This can be postulated away­certainty is an 
accepted part of any serious TBS narrative. (No 
need to assume here that what you believe is 
true: only that you have no reason to doubt it.) 
The other distinction, silence vs strangling, ie, 
omission vs commission, concerns neither 
causality nor intentionality­in both cases the 
man acts willfully to kill. It rests solely on 
timing, a consideration of no discernable 
normative relevance. One can, likewise, torture 
by omission. If the captive were diabetic, it 
would be torture to withhold his insulin until he 
talks, since this would fit our characterization 
of torture as a form of coerced trade. In sum, 
tying a stand on torture to a distinction between 
omission and commission is dicey. And even a 
plausible self-defense plea (which, it is fair to 
say, would never happen in practice) must give 
precedence to the rarity principle: break the law if you must.

Torture creep is yet another reason to make the 
legal ban watertight. The historical record 
indicates that the slightest legal opening to 
torture will metastasize into widespread 
institutional abuse. This "cancerous" spread 
affects intention, which leads to intimidation, 
submission, and extraction of false confessions. 
Even a state that allows torture only in rare 
cases will soon insist on competent torturers; 
hence torture schools, torture experts, torture 
research, and, given the gravity of the matter, 
an administrative state structure to oversee it 
all. In other words, it will build itself a 
"School of the Americas." The evidence is 
overwhelming: torture intended as a security tool 
will always morph into an instrument of power. 
That alone justifies a total ban on torture.

Finally, how much leniency should a judge extend 
in hypothetical cases of torture that 
demonstrably save lives? It would seem wise to 
grant judges enough sentencing discretion to keep 
would-be torturers in the dark and induce them to 
proceed on worst-case assumptions. Just as 
torturers may not invoke the Nuremberg defense, 
so anyone who orders torture, directly or by 
proxy, must be held legally responsible. Wartime 
torture admittedly poses a conundrum. There is 
empirical evidence that it is an inevitable 
by-product of aggressive warfare. If so, it may 
thus fall under the rubric of war crime (like 
executing children) and lose its categorical 
singularity. The issue of punishment becomes more 
complex. In theory, the jurisprudence on war 
crime should provide the relevant legal 
authority. Right, but in theory war criminals are 
dragged before a judge even when their side wins the war. In theory.

If torture is illegal at home, subcontract it 
overseas. Extraordinary rendition is the process 
of handing suspects over to third-world dictators 
with the promise that they won't be tortured and 
the certainty that they will. If only because of 
the rank hypocrisy behind it, one should not 
extend to rendition the customary distinction 
between directly causing harm and merely allowing 
it. If anti-torture activism results only in 
increased rendition, what is being morally 
gained? Torture is barbaric; rendition is 
barbaric and hypocritical. It must be an integral 
part of the fight against torture.

III. Why Not All Torture Decisions Should Be Morally Codified

Most opponents of torture would declare the 
matter settled: always immoral; always illegal. 
They would be wrong, for neither morality nor the 
law can answer the question: were you to face 
your daughter's kidnapper, may you torture him? 
The answer, whatever it is, must remain 
unjustifiable, so as to impose upon you, and you 
alone, the full moral weight of your action. This 
is the only subtle point of this essay, so I'll 
begin with a gentle introduction.

There are two common objections to the TBS 
question itself, neither of them wise. One is 
that it is a trap set up by torture lovers to 
force a small concession from their opponents, 
shift the debate to "settling the price," and 
then gloat: "See, we agree!" Of course, it's used 
as a trap. But the question is legitimate, in 
fact necessary, and the dreaded shift is easy to 
avoid. The second objection is that "it never 
happens," so why even discuss it? This collapses 
on three grounds. First, the claim is unprovable. 
Second, if it never happens, why should you care 
about the moral outcome? (Do you worry about my 
ethical take on green Martians?) Perhaps you care 
out of concern for torture creep: if so, address 
it on its own merits. Third, the philosophical 
value of hypotheticals is undeniable. Yes, the 
field of ethics has been hard on fat men being 
shoved in front of trolleys, but as in 
mathematics these "singular" points can be the 
lampposts that light up the dark street. Just as 
the corners of a triangle tell us all there is to 
know about its shape, so extreme cases help us read our moral compass.

The unease that accompanies the discussion comes 
from elsewhere. It stems from a confusion between 
morals and ethical codes, ie, between moral 
principles and the decision processes by which we 
make moral choices. Morality is about right and 
wrong. A moral (deontological) system may include 
specific injunctions, "Do not kill," as well as 
abstract precepts, "The Golden Rule." It is 
preferably universal in a Kantian (negative) 
sense, in that it should, at the very least, not 
contradict its adoption by everyone else: "I may 
leave a restaurant without paying for my meal" 
cannot be a moral maxim, for its wide adoption 
would quickly cause all restaurants to close 
shop, which in turn would contradict my desire to 
eat out. Moral systems consist mostly of 
intuitive, a priori judgments, unshackled from 
the need for empirical validation. Lying is wrong 
and so is tormenting a child. These are truisms. 
But what do we tell a terminally ill child who 
asks: "Am I going to die?" We lie, of course. Are 
we thereby signifying that honesty is less 
important than compassion? Not at all. For 
example, most of us would agree that empathy may 
not always excuse perjury. Honesty and compassion 
are both universal moral values, but their 
relative ranking may vary depending on the 
context. Unfortunately, there is no simple rule 
to tell us which should prevail when. We can 
always follow our moral intuition. But that can 
be dangerous: hate, self-interest, prejudice, 
biases can be all too "intuitive." And we are all 
so good at lying to ourselves.

Far better for us to turn to an ethical code, ie, 
a decision procedure to convert our moral beliefs 
into action. To guard against egoism, we'll try 
to make it universal so others might want to 
adopt it, too. We're all familiar with ethical 
codes: etiquette; chivalry; just-war theory; 
political ideologies, etc. The conservative code, 
for example, tells us that the best way for 
government to help the poor is not to help them 
at all. This is so weird we might never have come 
up with anything like it on our own. But it meets 
the three criteria of an ethical code: it seeks 
to match our actions with our morals; it is not 
self-evident (if it were we wouldn't need it); 
and it is effective (it helps us identify whom to vote for).

The ideal ethical code would be a big 
handbook­infinitely long, to be precise­with, 
next to each possible situation, a list of moral 
actions to choose from. This being somewhat 
unwieldy, a code will look more like an 
"algorithm," ie, a coherent set of interconnected 
generalization and abstraction rules based on 
representative cases that mesh with our 
intuitions. A perfect code would have to be 
complete, meaning that it covers all cases, but 
that is unrealistic. We might hope for it to be 
sound, ie, never to prescribe actions that 
violate our moral intuitions. To fix such 
violations, Rawls suggested tweaking rules and 
intuitions back and forth until we reach some 
sort of stable, "reflective" equilibrium. 
Inevitably, an ethical code will be on occasion 
intractable, meaning that it may actually tell us 
not to do X in situation Y but we're just too 
dumb to figure that out by the time Y has passed. 
The complexity of a code must be honored. It is 
in fact unethical to gerrymander moral boundaries 
to make it easier to lead a moral life­Bush tried 
to do just that with his "You're with us or 
against us." Naturally, to adopt an ethical code 
is itself a moral decision. (The vigilant reader 
will immediately spot the self-referential 
implication but I'll leave that one for another day.)

It is beyond dispute that an ethical code that 
advises us to lie to the dying child can be 
sound. But can all moral dilemmas be resolved by 
sound ethical codes? No code can be expected to 
be complete and always tractable, so the only 
reasonable answer is no. Fine, but what about 
torture? A ruling cannot be derived a priori, 
unless perhaps one considers torture a wrong 
universally greater than all others, a 
proposition clearly untenable. So what do we do? 
David Luban argues on incompleteness grounds that 
moral systems (hence ethical codes) should not 
apply to TBS. I agree, but for somewhat different 
reasons. I plant a flag right in the middle of 
the TBS swamp with the sign, "No Ethical Code 
Here." By that, I am not simply stating the 
impossibility or intractability of always 
reaching a decision via a universal code, 
something of which I cannot be sure. Rather, I am 
decreeing it. I disallow any code for TBS not 
because I have to (Luban's position), but because 
I choose to. My rejection of an ethical code 
appeals to an existentialist intuition. If 
morality is going to be incapable of helping us 
decide, then our choice should engage us fully so 
as to avoid any rationalization. It should be the 
ultimate act of free will. The would-be torturer 
must accept full moral responsibility and be 
denied both alibis: "My code made me do it" and 
"I was confused." The latter says that even 
incompleteness is no excuse. Here is a quick explanation.

Considering the real-life story of a young 
Frenchman in the 1940s torn between his urge to 
fight the Germans to avenge the execution of his 
brother and his desire to stay with his 
heartbroken mother, Sartre reviewed various moral 
systems to highlight the difficulty of teasing 
ethical guidance out of them. His point was that 
ethical codes are dressed up as advisory devices 
when in fact they serve only justificatory 
purposes. In other words, how do we know that 
ethical codes aren't rationalization engines in 
disguise, mechanisms for evading responsibility, 
sophisticated dodges? This points to the 
exculpatory nature of an ethical code. The neat 
thing about being advised, you see, is that we can always blame the advisor.

Sophie is given a choice: to kill one of her two 
children or have both of them killed. She has no 
choice but to act immorally. This is not my 
judgment but hers; more accurately, it is an a 
posteriori inference from the knowledge that 
she'll be racked with guilt for the rest of her 
life. Sophie's choice falls within the world of 
morals but beyond the human reach of moral 
guidelines. The injunction, "Spare the child 
who..." is morally impermissible. Sophie is thus 
able to act in a way that, though necessarily 
immoral, is not ethically mistaken. No one can 
ever tell her, "You saved the wrong child." In 
fact, we so believe that no ethical code should 
apply that we'd be shocked to hear Sophie justify 
her choice by appealing to some holy book 
claiming that God prefers, say, older siblings. 
"My religion made me do it" would reek of bad 
faith (in the Sartrean sense of self-lying) and 
suggest that perhaps Sophie preferred her older 
child but blamed her faith instead. It is morally 
imperative for her to renounce any ethical code 
and take full responsibility for her choice­or, 
as an existentialist would put it, to admit that she is condemned to be free.

The kidnapping story is identical except in one 
key aspect: the temptation of a code. Faced with 
the kidnapper and the mental picture of your 
daughter imploring you to do everything in your 
power to save her, your intuition is likely to 
whisper in your ear, "Torture the bastard!" 
Unlike Sophie's, your choice may even seem 
entirely obvious. This intuition may help you 
decide but, even after integrating the moral 
relevance of family, it still violates the 
deontological constraint of treating torture as a 
universal moral wrong: after all, your intuition 
might be quite different if the "bastard" were 
your son and the captive girl the past killer of 
your daughter. To give up on an ethical code 
altogether may be quite difficult, in fact. But 
this is the only way to respect the absolute 
wrongness of torture. If you're going to do it, 
you'd better be ready to "own it" and take all 
the blame. In this instance, free will implies 
carrying out, and accepting to carry out, your 
own decision in the belief that you would do it 
again in the future. In other words, neither of 
these excuses is acceptable: "I was foolish"; or 
"I did what I thought was best but that was against my will."

Consider a variant of TBS where torturing one 
person prevents the torturing of two other people 
elsewhere. Should you do it? Basic utilitarianism 
of rights says yes. The danger is that moral 
calculus is nothing but the exercise of an 
ethical code, hence a rationalization. I am not 
saying this is not allowed to influence your 
decision­one cannot shield oneself from all moral 
calculus. I am saying that in the end you must be 
the only owner of your decision. You must accept 
the guilt for your action as the necessary 
consequence of your freedom and you must reject 
any attempt to justify your choice. What if you 
are ordered to torture? Assuming a moral choice 
is possible, ie, disobedience is not punishable 
by death, you should refuse to torture unless you 
are confident that you would give the same 
order­were you in a position to do so­if you also 
knew that you had to carry it out yourself. 
(Merely believing that you would give the order is not enough.)

The final verdict on torture: always wrong; 
always illegal; always unjustifiable.

Bernard Chazelle is a professor of computer 
science at Princeton University and author of 
Discrepancy Method: Randomness and Complexity. He 
can be reached at: <mailto:chazelle at CS.Princeton.EDU>chazelle at CS.Princeton.EDU

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