Home Australia The Case for an Australian Iraq War Inquiry is Compelling

The Case for an Australian Iraq War Inquiry is Compelling

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bush and howard

By James O’Neill*

(This article first appeared in New Eastern Outlook)

The release of the Chilcot Report into the circumstances under which the United Kingdom took part in the invasion and occupation of Iraq in 2003 has raised fresh questions of how Australia came to join the unfortunately named “coalition of the willing.”

Initial reactions to the Chilcot Report came from John Howard, Australian Prime Minister at the time of the formal announcement of the decision to become part of that coalition.  Howard essentially argued that it was the “right” decision, taken on the basis of the best available intelligence at that time.

The current Foreign Minister Julie Bishop has expressed similar views.  Both Howard and Bishop are lawyers, although that is not immediately obvious from their expressed views.   Neither seems to have even a basic grasp of the principles of international law, or indeed even the law of evidence.

Successive Australian governments of both major political persuasions have refused to conduct a formal inquiry into the circumstances under which Australia joined the Iraq invasion and occupation.  This is probably because both major parties are culpable in ignoring both the law and the evidence.

It is therefore important to look at the origins of Australia’s involvement, not only because of the Chilcot Report, but because what we now know about the decision making process discredits the protestations about “faulty intelligence” and good faith claims about ridding the world of an “evil dictator”, all designed to bring peace and democracy to the Middle East.

The legal starting point is Article 2 of the United Nations Charter, a document that Australia was instrumental in formulating.  Article 2(3) of the Charter provides:

“All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

Article 2(4) further provides:

“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.”

These two provisions are rarely cited in the context of Iraq and were completely ignored in the legal opinion provided to the Australian government.

The Charter does of course provide an exception to the general prohibition on the use of force, and that is in the self-defence provisions of Article 51.  A nation may of course act in self-defence if attacked by another State.  As is well settled law, there must be an actual or imminent threat of an armed attack; the use of force must be necessary; and the force used must be proportionate.

No sensible argument can be mounted that Australia was threatened by Iraq, either directly or indirectly.  Claims to the contrary, made in early 2003 by the Australian government do not withstand scrutiny.

A decade of sanctions had enfeebled Iraq’s military capacity as well as exacting a devastating toll upon its civilian population.  An estimated 500,000 Iraqis, mainly women, children and older persons, died as a direct result of the sanctions.  Former US Secretary of State Madeleine Albright callously described those deaths as “worth it” to dismember Iraqi society.

The post-invasion death toll is well in excess of a million people (1).  Again, it is a measure of the callous indifference to the truth about the invasion’s consequences that the Australian media persistently refer to the death toll as “more than 100,000”.  While literally true the effect is to dramatically understate the true human costs of the invasion.

The only operative provision of Article 51 therefore is that force may be used pursuant to a resolution of the Security Council authorizing the use of force.  Circumventing that restriction was in fact one of the central preoccupations of the UK and Australian governments.

In November 2002 the Security Council passed Resolution 1441 and the key issue was whether or not that Resolution constituted such an authorization.  Chilcot devoted considerable space to this legal question, devoting the whole of Part 5 of the Report to the legal maneuvering that went on.

Suffice to say at this point that the overwhelming weight of international legal opinion, including the whole of the UK Foreign Office legal team, considered that it was insufficient to justify the use of force.

Prime Minister Howard set out the political argument for Australia to join the coalition attack on Iraq in an address on 4 February 2003 to the Australian Parliament. This was on the eve of US Secretary of State Colin Powell’s ill-fated address to the Security Council.

Howard assured the House that the government would not make a final decision to commit to military conflict (although troops had already been deployed to the Middle East) “unless and until it is satisfied that all achievable options for a peaceful resolution have been explored.”

This is to be contrasted with one of the central conclusions of the Chilcot Report that the diplomatic alternatives to war had not been pursued as far as was possible.  The reasons for this will become obvious.

Howard further made the unequivocal statement that “the Australian government knows that Iraq still has chemical and biological weapons and that Iraq wants to develop nuclear weapons.”  The presumed evidential basis for this bold assertion was apparently British and US intelligence.  Again, the Chilcot Report refers to the opposite conclusion.  The views of the intelligence agencies were much less forthright than the political spin put on them by the British Prime Minister.  The same was equally true of Howard’s claims.

Howard even went so far as to repeat the discredited claim that “uranium has been sought from Africa (sic) that has no civil application in Iraq.”  This was essentially an echo of George Bush’s infamous 16 words in the State of the Union address in January 2003.  In fact, the 2002 US National Intelligence Estimate described that “intelligence as “highly suspect.”

This followed an investigation on behalf of the US intelligence agencies by Ambassador Joseph Wilson in February 2002, a year before Howard’s statement to Parliament that concluded that reports of Saddam Hussein seeking uranium or Yellow cake were “unequivocally wrong.”

Undeterred by the real evidence, the Howard government introduced a resolution into the House on 18 March 2003 to seek authorization for Australian military action in Iraq.  The resolution relied in part on assertions about Iraq’s continued possession and pursuit of weapons of mass destruction in defiance of Security Council Resolutions.  The resolution before the Australian parliament also claimed that resolutions 678, 687 and 1441 provided “clear authority for the use of force against Iraq.”

In support of this extraordinary claim, Howard tabled in the House the legal advice upon which the government purportedly relied.  He said that the advice was consistent with that provided to the UK government by its Attorney-General Lord Goldsmith.

At best, that was a partial truth.  In fact, the terms of Resolution 1441 provided that should Iraq be found to be in material breach of its obligations, then the matter was to be returned to the Security Council for its assessment and consideration.  There was nothing in Resolution 1441 that expressly or impliedly authorized the resort to force without further consideration by the Security Council.

This was known to the UK Government because in February 2002, more than a year before the invasion, all 14 members of the Foreign Office legal team had advised the government that in their opinion Iraq could not be attacked without a specific further authorization from the Security Council.

This was also the view of the UK Attorney General Lord Goldsmith.  He provided Tony Blair, the then UK Prime Minister with a detailed analysis, which reached the same conclusion.  As the Chilcot Report makes clear, Blair did not provide his Cabinet with a copy of Goldsmith’s opinion.  To do so would have undermined the propaganda campaign then in full swing.

Blair was not prepared to seek a resolution from the Security Council authorizing force because he knew he could not command the necessary support from the Council, even discounting the likely French and Russian vetoes.  It is logically contradictory to claim, as Howard did, that the Security Council resolutions authorized force, and refuse to test that as Goldsmith had advised was the prudent course because one knows that such authorization would not be forthcoming.

Instead of confirming what the legal opinions had advised, both Blair and Howard continued to make unequivocal statements that Saddam Hussein was defying Security Council resolutions, concealing weapons of mass destruction, and pursuing a nuclear weapons program.

Chilcot again found that there was no proper basis for these statements, including the evidence of the two independent inspectors, Mohammed al-Baradi and Hans Blix that they could find no evidence of any weapons or weapons program, and that Saddam Hussein was co-operating with the inspection teams.

Goldsmith’s detailed opinion was finally provided to the Cabinet on 7 March 2003.  It was clearly not what Blair and the others intent on war wanted to hear.  Goldsmith was therefore sent to the United States where he conferred with Bush’s legal advisers.

Goldsmith duly returned to the UK and in a written answer to a question in the House of Lords in 337 words reversed the position he had carefully set out over 12 pages of legal argument only ten days earlier.  Goldsmith’s answer said in effect that the alleged material breaches by Iraq of Resolution 678 (which dealt with the ceasefire after the first Gulf War in 1991) “revived” that resolution.

Professor Vaughn Lowe, professor of International Law at Oxford University has written, “there is no known doctrine of the revival of authorizations in Security Council resolutions” (2).

Apart from Professor Lowe, the overwhelming weight of legal opinion was that Goldsmith’s new position was untenable.  A 551-page report from a Dutch Commission of Inquiry headed by a former President of the Dutch Supreme Court reported on 9 October 2010 that the 2003 invasion of Iraq “had no basis in international law.”  That Dutch Report received very little coverage in the Australian media.

Sir Michael Wood used almost identical words in his evidence to the Chilcot Inquiry.  Sir Michael was the Senior Legal Adviser at the foreign Office at the time of the invasion.  He told the Inquiry:

“I considered that the use of force against Iraq in March 2003 was contrary to international law.”   Sir Michael went on to say: “In my opinion, that use of force had not been authorized by the Security council, and had no other basis in international law.”

Whether John Howard knew about the unanimous opinion of the Foreign Office’s legal team, or Goldsmith’s detailed analysis of 7 March 2003 is not known.  If he did, he did not mention it.  Howard told the Australian parliament that the advice he had received was “consistent with” the UK advice.  He could only be referring to Goldsmith’s 337-word parliamentary answer, because manifestly Howard’s legal advice, tabled at the same time, did not reflect either Goldsmith’s original advice, the Foreign Office legal advice, or the weight of world legal opinion.

Although the Chilcot Report did not state a specific legal view on the issue, it is clear from a reading of Part 5 of the Report where 169 pages are devoted to detailing the processes by which the legal positions were pursued, concealed from the Cabinet, modified and ultimately misrepresented, that 1441 could not operate as an authorization for the use of force, much less the “revival” of earlier resolutions.

Other critics have been less reticent.  Professor Phillipe Sands QC, professor of international law at University College London said in June 2010 that documents disclosed at the Chilcot Inquiry showed that Goldsmith had a 180 degree turn in his opinion between 7 March and 17 March 2003 “in the total absence of any new facts or legal considerations.” (3)

Lord Alexander, a former head of the Bar Council of England and Wales thought Goldsmith’s 17 March 2003 answer was “risible” and said so publicly on 14 October 2003. (4)

So where did John Howard obtain legal advice so against the weight of authority? Unlike in the UK where the government at least sought the advice of its most senior legal adviser, the Attorney General, the Howard government instead obtained an opinion from two middle level public servants.

Their opinion does not acknowledge that the weight of legal opinion differed from theirs.  Their interpretation of the Security Council resolutions was plainly wrong, “risible” to borrow Alexander’s terminology.  They provided no evidence for concluding that Iraq was in material breach of Security Council resolutions as Howard had asserted.  They also accepted the doctrine of “reactivation” when such a notion, as noted above, is unknown in international law.

As former Commonwealth Solicitor-General Gavan Griffiths wrote:

“The Australian and UK legal advises are entirely untenable.  They furnish no threads for military clothes.  It is difficult to comprehend that the fanciful assertions (they are not arguments) of the two advices have been invoked by Australia and the UK to support the invasion of another State.” (5)

In both the UK and Australian cases, seeking legal opinions was in reality no more than window dressing, a fig leaf of attempted respectability.  The decision to go to war against Iraq had been made early in 2002.

The Cheney Task Force, with its maps dividing up Iraq’s oil riches among western oil companies was one motive for waging an unjustified and illegal war of aggression.  Meeting the wishes of the Israelis as set out in the 1982 Yinon Plan was another.  Saddam Hussein’s decision to trade oil in other than US dollars was also a crucial factor.

At one time, Saddam Hussein had been a US ally.  The British and Americans had supplied the weapons of mass destruction he used during the war with Iran in the 1980s.  Once their objectives differed Saddam Hussein became expendable, and ‘regime change’, a much favoured and practiced American option became the policy.

Further confirmation of this, were it needed, comes from the report of the head of MI6, Sir Richard Dearlove, following a visit to the US.  What is now known as the Downing Street Memo was written on 23 July 2002, eight months before the invasion, and well before legal opinions, UN Inspector’s Reports, or parliamentary debates.

The Memo stated in part:

  • Military action was now seen as inevitable.
  • President Bush wanted to remove Saddam Hussein through military action, justified by a conjunction of terrorism and weapons of mass destruction.
  • Intelligence was being fixed around the policy.

The facts did not matter.  A policy decision had been taken and nothing could be allowed to divert the policy objective of invading Iraq and stealing its resources.

It is a reasonable inference that the Australian government was fully aware of this.  Precisely what they knew and when they knew it must await the establishment of a proper inquiry.  We do know however, that the views of the two Ignoring the major foreign intelligence agencies, the Defence Intelligence Organisation (DIO) and the Office of National Assessments (ONA) were disclosed in a report of the parliamentary joint committee in December 2003.

The DIO and ONA had concluded:

  1. The threat from Iraq’s weapons of mass destruction was less than it had been a decade earlier (1991)
  2. Under sanctions that prevailed at the time, Iraq’s military capability remained limited and the country’s infrastructure was still in decline.
  3. The nuclear program was unlikely to be far advanced. Iraq was unlikely to have obtained fissile material.
  4. Iraq had no ballistic missiles that could reach the US.
  5. There was no known chemical weapons production.
  6. There was no specific evidence of resumed biological weapons production.
  7. There was no known biological weapons testing or evaluation since 1991.
  8. There was no known Iraq offensive weapons research since 1991.
  9. Iraq does not have nuclear weapons.
  10. There was no evidence that chemical weapon warheads for missiles had been developed.
  11. No intelligence had accurately pointed to the location of weapons of mass destruction.

Ignoring the evidence (not an honest belief as pleaded then and now) and an overt willingness to join US foreign policy misadventures has led to one of the greatest policy debacles in Australian foreign policy history.  It has resulted in the deaths of more than a million Iraqis and millions more displaced and their lives destroyed.

It has given rise to the threat of Islamic terrorism that plagues countries throughout the Middle East, North Africa and as recent events have shown in France and other European nations.

The Nuremberg and Tokyo Tribunals following World War 2 called a war of aggression “the supreme international crime differing only from other crimes in that it contains within itself the accumulated evil of the whole.”

That the principal perpetrators of the Iraq War, Bush, Blair and Howard, have thus far escaped accountability for waging a war of aggression is unconscionable.  Australia must have a Chilcot type inquiry and judicial processes must follow their inevitable conclusions.

*James O’Neill is a Barrister at Law.  He may be contacted at joneill@qldbar.asn.au


References

1  Burnham et al, The Lancet, 11 October 2006

2  Lowe, The Iraqi Crisis: What Now? Vol 52 International and Comparative Law Quarterly (2003) 859

3  Sands, The Guardian 30 June 2010

4  Alexander, Iraq: Pax Americana and the Law. 14 October 2003.

5  Griffiths, Sydney Morning Herald, 21 March 2003.

6. Intelligence and Iraq’s Weapons of Mass Destruction. Report of the Parliamentary Joint Committee, Canberra, December 2003.

 

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21 COMMENTS

  1. James, quoting Prof Eric Yamamoto of University of Hawaii Law School:

    “Mission Accomplished,” said the huge aircraft carrier banner behind President Bush in May 2003 when he announced the United States’ victory in Iraq. Six months later, amid intensifying criticism over the rising numbers of American deaths and organizational disarray in Iraq, President Bush publicly disclaimed that he had ever conveyed that message, saying that the ship’s crew had hoisted the banner unbeknownst to the administration. The President’s people, of course, helped make the banner and approved its placement in the news camera’s eye to communicate worldwide the very message the President later disclaimed.”

    James, the younger generation has been taught that lying is OK — many aren’t even aware that truth-seeking is an option (seriously). So please just keep yakking away about truth to put some such words in the atmosphere.

  2. “Unlike in the UK where the government at least sought the advice of its most senior legal adviser, the Attorney General, the Howard government instead obtained an opinion from two middle level public servants.” – More ‘junk science’ and ‘junk legal opinions’ out of Canberra. Anybody know if these ‘middle level public servants’ suddenly had an escalation in their careers after preparing the advice?

    Going back in time, there were already demonstrations in Australia about participating in the Afghanistan fiasco. Iraq was going to be a hard sell to the Australian public. Then, another lucky ‘coincidence’ for the Australian Government – the Bali Bombing.

    It is difficult to get much information about the bombing, whereas 9-11 and Port Arthur there is plenty of evidence of a psy-op. However there is some information, for example, instead of the club where the American tourists hung out, the Ozzies got targeted. The photos from the scene showed cement stripped from the underlying rebar – evidence of a high intensity shock wave, not a homemade bomb. The Australian Federal Police got significantly involved (not a good sign). The evidence from the bombing was dumped at sea. Flight logs at the airport altered, but the tarmac logs for refueling showed an Israeli registered aircraft being refueled. The Australian media doing 24/7 news coverage consistent with a psy-op, including a tape from the long dead Osama Bin Laden. Lots of other bits, but trying to connect the dots led to dead ends where the information would dry up.

    Here’s one bit of information I can’t verify. I read a purported NSA transcript of a discussion between Bush and Howard. Howard indicated there was already much resistance to the Afghanistan incursion and Iraq would present a bigger problem. Bush replied “I’ll see what I can do”.

    I had a phone conversation with the Magistrate that had lost his son (forget his name). I told him what I knew about Bali and about Port Arthur (sent him the information). He was taken back and probably figured he was talking to a ‘nutter’. He continued to try and get information about the bombing. I saw him on TV sometime later, his demeanor and how he referred to the bombing (“others were involved”) indicated to me that the penny had finally dropped.

    • Terry, that’s terrific info.
      You may recall Gumshoe’s “Retrospective on Bali”
      I quoted from the putative Bin Laden tape. He said Oz had previously been warned “but ignored the warning until it was awakened by the echoes of the explosions in Bali.” Can you imagine old Tim Osman using such poetic language.

      Terry, you know of a magsitrate who lost a son. There were many Aussie deaths in Bali. Don’t any of their families want to get at the truth? I hope they don’t feel embarrassed to say their loved one may have been harmed by our ‘coverts.’ All embarrassment should be on the other side.

      Boy, was I pleased to read that Tori Johnson’s mother threw a fit at yesterday’s Lindt Cafe Inquest hearings (regarding the hesitation of the Police Tactical Commander to quell the siege earlier, out of ALLEGED respect for Monis’ rights.).

      https://gumshoenews.com/2014/10/05/sedition-laws-in-australia-and-a-retrospective-on-the-bali-bombings/

    • Terry, one of the two authors of the Iraq legal advice was Chris Moraitis who has risen steadily up the DFAT ranks ever since. He was even mentioned as a possible replacement for Varghezi.
      There is also a very interesting history of countries that show insufficient enthusiasm for the current wars of the US suffer a terrorist attack, an attempted coup, a color revolution or similar to encourage a return to the “right” path. I am working on an analysis of the Turkey quasi coup within this framework.
      You may find the updated version of Confessions of an Economic Hitman (2016) instructive in this regard. Plus ca change!

  3. To add to Terry’s comments on the Bali Bombing incident I have been informed that U.S. military took several vehicles and much explosive into one of their deserts to find out how much explosive was needed in a car bomb to create a crater. They came away amazed that no amount of explosive makes a crater on firm ground. The energy force takes the line of least resistance, that is upwards. This is why the craters created in Bali and the Australian Embassy were created by Mini-nukes.
    One of the sites was checked for radiation and came up positive. Mick Keelty deliberately lied on TV when he said the crater was caused by a car bomb. What were the A.F.P. doing investigating a crime in a foreign country? They had no right by either country’s laws.
    It is my opinion that every Australian Prime Minister after Paul Keating, should be tried as War Criminals, as all have had Australian Military personnel involved in illegal wars.

    • OK, Mal, if we don’t hear from you in the next few weeks we’ll know what happened….

      And here is a list of the Coalition of the Willing re the 2003 US invasion of Iraq:

      Afghanistan, Albania, Australia, Azerbaijan, Bulgaria, Colombia, the Czech Republic, Denmark, El Salvador, Eritrea, Estonia, Ethiopia, Georgia, Hungary, Italy, Japan, South Korea, Latvia, Lithuania, Macedonia, the Netherlands, Nicaragua, the Philippines, Poland, Romania, Slovakia, Spain, Turkey, United Kingdom and Uzbekistan.

      Ah, nothing like the alphabet to make UK and Uzbekistan look equal. ‘The great equalizer.”

      (Japan? a fighting force at that time? No, It was willing to “help finacally with the rebuilding of Iraq.” This was announced in advance of the destroying of Iraq.)

    • Mal, you may be referring to tests of the AFNO bombs in trucks, really not too different to the alleged explosives in Bali. I watched those videos – and the blasts primarily go UP. The explosions did compress the truck suspensions, but other than that – they definitely didn’t blow one meter deep holes in the pavement.

      So what was used in Bali? Someone must know, but I doubt we will get to hear from them. Perhaps someone with some diving gear could do some research.

      • Now, Everybody, don’t bite my head off when I mention the name “Joe Vialls.” I realize the guy was a major louse. But I do seem to recall him jumping right in there after the 2002 Bali bombing and after the Boxing Day 2004 tsunami in Indonesia and alerting us to “something”.

        Yes I know he laced it with disinfo, but it contained a lot of good info too — as is typically the case. So some knowledgable person(s) must have fed the data to him, right?

        Song to that person: I am calling yoo, oo-oo-oo, oo-oo-oo.

        • As I remember it, the Bali bombing occurred late at night in Australian time. Crikey, ‘Joe Vialls’ had a webpage up and running with pictures the following morning. He should have been in bed when it happened, but somehow he got all the conspiracy information and pictures together early in the morning for the next day.

          The Australian media wasn’t that quick. Think about that!

          Disinformation is 80% good information and 20% codswallop – the codswallop is intended to discredit the good 80% and make the whole concept laughable.

          If you have been around for a while and aware you can pick through the disinfo – if you’re a moron you will grab the disinfo and run with it.

          The ‘Darwin Award’ is generally given for stupid physical activities, but really, it is being stupid that gives you the award.

  4. Thank you James – what stands your genuine articles apart from the nonsense propaganda that many are still to wake up to is your list of references / source material – unlike the WADA report that highlights that Russian athlete blood/urine samples were swapped through a ‘HOLE IN THE WALL’ – a sophisticated MOUSE HOLE, no less. Let’s hope more pennies drop – the sooner the better.

    A news bulletin on ABC RN radio last night reported that a UN body / committee HAS found that GENOCIDE (of 500,000+) WAS committed by the Indonesian government in the 1960s and that the AUSTRALIAN and US regimes were COMPLICIT by ensuring that the MEDIA gave an overwhelming favorable coverage to the Indonesian regime carrying out this genocide. It is no surprise that I can’t track down the transcript or podcast of this bulletin via google.

    Meanwhile:
    Joe Biden: “It’s never been a good bet to bet against the United States … [pause and repeat] … It’s never been a good bet to bet against the United States” (see exactly at 10:00 in this link to his parting speech)

    Equally foreboding …
    Joe Biden: “Don’t you worry about our elections – ‘better angels’ WILL prevail”

    • Thanks Jsk. You have to ask where have the ABC been for the past 51 years. That information has been widely available. See for example the work of William Blum “Killing Hope” chapter 31 published in 2004. There are many other sources.
      We also have a less than glorious history about the 1975 East Timor bid for independence. We are still screwing them over, ironically in the light of our response to the South China Sea ruling, by refusing to participate in the Tribunal hearing their complaint about our theft of their oil and gas resources.
      As for the ABC link, try this: http://www.abc.net.au/news/2016-07-21/1965-indonesian-mass-killings-were-'crimes-against-humanity'/7647274
      Biden’s speech is an example of the Godfather making us an offer we can’t refuse. An ill-concealed threat. Did you note that Australia has increased its troop commitment to Iraq right after Biden met with Turnbull. Amazing how they still need help with their ‘training’ 13 years after the invasion.

      • Thank you James – that’s precisely the report that was read out in the early quiet hours … “The killings were triggered by a FAILED COUP that led to the deaths of six army generals, followed by the mass targeting of ‘COMMUNISTS'” … a formula that works every time …

        And yes – the topic / phrase ‘militarisation of the police’ is now quite commonplace.

  5. There are 88,888 days from 7/7/1776 to 11/19/19 which suggests 911,…( and Relating to The Birth of the USA as a Nation on 7/4/1776 ) – July 7, 1776 The Declaration of Independence was Finished And the Anniversary of the London Bombing 7/7/05 – November 19, 2019 is 323rd day of the year and November 18th the Eve of 11/19/19 and is the 322nd day of the year – and is 88% of the year! – the number322 is the Secret number of the ( Bush Crime Family’s ) … Skull and Bones Society!
    Just a little trivia to chew on. Chow.

  6. Another question: Why & how did Australia become a member of NATO, when we are half a world away and have no business (not trade), in that part of the world. Our politicians can’t even govern correctly in Australia, with a constitution to guide them.

  7. Many Interesting matters raised here.
    So where is any contribution
    from the politicians, msm and their shock jocks?
    Seems that there is a lacking of guts to enjoin in the discussion.
    I think we can surmise why.
    Gutless! Where are you Derryn? Bit challenging? Say Mr. Faine, interesting in earning our 350,000 growing a
    spine?

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