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Legal Affairs

 

Should Gonzales be Attorney General?

January 25, 2005

By Heather Mac Donald

At his confirmation hearings to become attorney general, Alberto Gonzales was asked, “Do you approve of torture?” Gonzales’ tenure as White House Counsel has been marked by criticism, but none so strident as the claim that he bears much of the responsibility for the torture scandals at Abu Ghraib and Guantanamo Bay.

Still, his experience—as a lawyer with a prominent national firm, as a Texas Supreme Court judge, and in the White House—has given him many of the tools needed to run the Department of Justice. Will Gonzales be a good attorney general?

Hutson: 1/25/05, 10:27 AM
Let me start this out by echoing what many others have noted; that is, that Judge Gonzales has a compelling personal history. I have great respect and admiration for all that he has accomplished during his lifetime. It is an inspirational story.

In an effort to set the stage, let me talk for a moment about the office of Attorney General. I believe the Attorney General is unique among the cabinet officers because she or he bears a responsibility directly to the American public as the chief law enforcement officer of the United States. The Attorney General also must be the watchdog over the government. Finally, people don’t always understand the breadth and depth of the responsibilities of the Attorney General. For example, he or she has control over the FBI, DEA, ATF, and a host of other law enforcement agencies and all the U.S. Attorneys around the country.

For those reasons I think the nominee should not be benefited by the deference that the Senate should give to other cabinet nominees. At the confirmation hearing, Senator Schumer made the point that he would be deferential to this nomination but he would not be in judicial nominations. (Everyone in the hearing room knew he was foreshadowing a Gonzales nomination to the Supreme Court.) And yet, I think that same “strict scrutiny” should apply to Attorney General.

With that backdrop I think Judge Gonzales is not qualified to be Attorney General and should not be confirmed. (In the interest of full disclosure, I should add that I testified to that effect at this confirmation hearing.)

I take this position for several reasons, but all related to the so-called “torture memos” that were produced in 2002 by various agencies in the government. He personally drafted one to the President in January, 2002 in which he referred to Geneva Convention (G.C.) limitations on interrogation techniques for prisoners as “obsolete” and requirements for the treatment of prisoners as “quaint.”

He also told the President that it would create difficulties for us if the G.C. applied because while no one can be prosecuted for violations of the Conventions, “grave breaches” are violations of the War Crimes Act, which is U.S. law, which is punishable by death. In other words, if the Geneva Conventions apply, U.S. personnel could be prosecuted in U.S. courts for grave breaches under the War Crimes Act. If they don’t apply, then it’s Katie bar the door. We can do what we want.

Is that what we want U.S. policy to be?

Mac Donald: 1/25/05, 05:32 PM,
I agree with your observations about the Attorney General’s sobering responsibilities. But even if the Senate were to apply “strict scrutiny” to the Gonzales nomination, as you suggest, I believe he could pass muster.

It’s long past time to present in its entirety the passage from Judge Gonzales’s January 2002 memo that you—along with the rest of the media—quite selectively excerpt. Judge Gonzales wrote:

The war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for [the Geneva Convention Relative to the Treatment of Prisoners of War]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip, athletic uniforms, and scientific instruments.

What in this statement do you disagree with? Without doubt, the war that terrorists wage on us and our war against them bear no resemblance to traditional wars between nation states. Terrorists do not even recognize the grounding concepts in the lexicon of war, such as state sovereignty, national borders, or uniformed combatants. They violate every humanitarian norm that civilized nations have painstakingly established for the conduct of war: they target civilians, and they hide in the civilian population.

It is also incontrovertible that the only way to defeat terrorists is with information. Tanks and missiles are all but irrelevant.

Now, were we to confer prisoner of war status on terrorists (thus violating the letter of the Geneva Conventions), those terror detainees would not have to answer any questions beyond name, rank, and serial number—which, beyond their names, they do not possess, because they are already in violation of such rules for soldier organization. They could not be isolated in separate cells, but would have to be housed together in a dormitory, where they could collaborate on their resistance strategies. They would be accorded the gold standard of treatment devised for your average conscript who, upon capture, is out of the war. Terrorists are never out of the war. Even in detention, they see themselves as carrying on the Jihad.

I deplore torture. So does Judge Gonzales. I do, however, believe that the stress interrogation techniques that were devised for use on terror detainees—questioning a prisoner past his bedtime, isolation, impersonating a foreign interrogator—are well within the bounds of humane treatment. Interrogators came up with these strategies because they were facing indomitable resistance from savvy Al Qaeda detainees. The traditional Army interrogation techniques developed for lawful prisoners of war were utterly ineffective in getting war on terror prisoners to talk. What do you think the military should have done—given up?

Hutson: 1/26/05, 12:12 PM
Thank you for taking the time to provide the entire quote from Judge Gonzales’ memo to the President. There is quite a bit that I disagree with in that memo and specifically in that paragraph. Fundamentally, while he is right that the war on terrorism does present a “new paradigm” his argument proves too much. All wars are new paradigms. The American colonists were largely citizen soldiers who didn’t wear uniforms and fought from behind rocks and trees. The Civil War introduced rifles rather than muskets. WWI had machine guns; WWII had the sneak attack of Pearl Harbor. Then the Holocaust, the Bataan Death March, and so forth. There are always new enemies, new weapon systems, new tactics, new strategies. That doesn’t mean that suddenly because this happens to be this generation’s war, we are somehow permitted to ignore, or define away, the rules that we have lived by for generations and largely define who we are.

War is a terrible thing. As civilization has progressed, we have managed to apply a few rules to how it will be waged. Requirements and limitations on how you treat the enemy on the battlefield and off are part of that. War is not an end in itself. All war accomplishes is to buy the time and space necessary for real solutions to take place—diplomatic, social, economic, even religious solutions. You must wage the war in such a way that peace can ultimately be attained and sustained. To use what is perhaps a pedestrian analogy, if you have an argument with your spouse, you mustn’t say or do something that the relationship can’t endure once the argument is over. At some point, peace (or domestic tranquility) will resume and you must be prepared for that.

The response of course is, “John, you are so incredibly naive. Don’t you remember what they did and are still doing to us? 9/11, beheadings, car bombings and all the rest?” It’s true. Terrorists are terrible people. They should rot in hell. But I submit to you a couple thoughts for your consideration. One is that by definition, the specific individuals in our custody in Abu Ghraib, Gitmo, and elsewhere are not suicide terrorists, at least not yet. For the most part, we have no particular reason to believe they have committed any terrorist acts or even that they have any valuable information. The purpose of the interrogations is to find that out. (Remember, if they aren’t wearing uniforms, aren’t bearing arms, and aren’t operating under the authority of a superior in the chain of command, as required by the Geneva Conventions for POW status, it may be because they are just a goat herder or shopkeeper. I’m not wearing a uniform or bearing arms openly now either. That doesn’t make me a terrorist suspect.)

Another consideration is that just because the enemy does terrible things is no reason for us to lose our soul in this fight as well. I think there is nothing wrong with unilateral adherence to the rule of law and civilized conduct. I expect we may get into that issue in greater detail later.

Finally, let me disagree with Judge Gonzales in another respect. The provisions of the Geneva Conventions which he so cavalierly characterizes as “obsolete” and “quaint” are there to protect U.S. soldiers, sailors, Marines, and airmen now and in the future. Since WWII, U.S. troops have been more forward deployed than all other nation’s troops combined in terms of numbers of troops, number of deployments, duration, location, or any other measure. It is our men and women who are most likely to be in harm’s way and therefore most likely to be captured. When we are the captives rather than the captors, we want to be able to shout “Geneva Conventions” at the top of our lungs. We don’t want to get into nice legalistic arguments about whether or not they apply and to whom.

Even if I were to accept the argument that Geneva doesn’t apply because Afghanistan is a failed nation state and so forth (which I don’t accept), it behooves us to apply the Conventions anyway. It’s a sign of strength and civilization that ennobles us; it doesn’t diminish or weaken us.

The Geneva Conventions don’t limit the questions you can ask prisoners. You can ask them all you want. All the Conventions do is prohibit torture from the interrogation techniques that can be employed and require the prisoner to provide certain fundamental information. This isn’t Miranda. The prisoner can’t “lawyer up” or decline to be interrogated. So, no, the interrogators don’t have to “give up,” as you suggest. They can interrogate aggressively, just not illegally.

Even if the Geneva Conventions never existed, there is a whole body of domestic law, international law, and customary international law that clearly prohibits the misconduct we have seen and most of what the administration, including Judge Gonzales, put in motion and have never made a concerted effort to stop.

Once Judge Gonzales said that limitations on interrogation techniques were obsolete and that requirements pertaining to how you treat prisoners were quaint, he rang a bell that can’t be unrung. If they are quaint and obsolete for us, now, they are quaint and obsolete for everyone forever. You can bet that is the argument future enemies will make when they have our fighting men and women in prison. It will be his memo and the Bybee memo—not the longstanding U.S. Army Doctrine—that will be in the field manuals of our future enemies.

Mac Donald: 1/26/05, 07:30 PM
The issue, it seems to me, is this: Do we strengthen the regime of international humanitarian laws by making POW status an unconditional entitlement, or should POW status be conditional on fulfilling the Geneva Convention requirements for coverage? You argue that Al Qaeda terror suspects, who have never signed a treaty with the infidel United States and never would, who violate every norm of civilized war (an oxymoron which the Genevas nevertheless aspire to), should nevertheless be accorded the gold standard of Geneva protections—POW status—whenever they have been taken captive by American forces. I believe that eliminating Geneva’s careful architecture of reciprocity and responsibility would create a far more dangerous world, including for our own troops.

Your analogy of a spousal dispute works well for the nineteenth century conflicts out of which the Genevas were born; it is utterly irrelevant to Islamic terrorism. “If you have an argument with your spouse,” you write, “you mustn’t say or do something that the relationship can’t endure once the argument is over. At some point, peace (or domestic tranquility) will resume and you must be prepared for that.” True enough for a world of relatively stable nation states, whose relationships would likely survive after the current conflict, and who would also in all likelihood fight each other again. In this international context, expectations of reciprocity make sense. We expect other nations to honor their treaty obligations towards our own soldiers because we will be taking their soldiers captive, too. Likewise, soldiers in such a world can have some modicum of confidence that if they obey the laws of war, the capturing state will more or less observe its duties towards them.

But John, we are not in a “relationship” with Al Qaeda! Their “argument” with us will not end and be replaced with “peace (or domestic tranquility).” They want to destroy us completely. They have no intention of living to fight another war with us, after a period of peace. Thus, when they take captives, as often as not they behead or execute them, ideally on video for propaganda purposes (thus violating, at the very least, the Geneva ban on exposing POWs to “public curiosity”). We could wrap our terror captives in downy quilts and perfumed sheets, and Al Qaeda would still execute its infidel prisoners. Indeed, they regard our humanitarian scruples as contemptible weakness.

So let’s say we nevertheless announce: You can trample all over the spirit and letter of the Geneva Conventions, but we will still treat you as an honored guest. Are we going to get more lawless war-fighting behavior by our enemies or less? I wager more. With no penalty for violating with the laws of war, many combatants will start to use the same inexpensive, extraordinarily effective methods that terrorists use. Remember, they are our enemies. Our enemies follow the Genevas not because they like us or want to be friends, but out of self-interest. But by making POW status unconditional and severing it from behavior, you remove the incentive of self-interest. So why not always target civilians and hide in the civilian population? You get a whole lot more bang for your buck and don’t have to buy uniforms.

Does this mean that in the next conventional war between Geneva signatories, our soldiers would be at risk? No, because the same incentives that always underlay the Genevas would still apply.

Judge Gonzales was not claiming that the Geneva limitations on interrogation were obsolete for traditional wars, just for wars against terrorists who fall outside the Geneva framework. Ditto his claim about “quaint” requirements such as providing athletic uniforms and allowing prisoners to prepare their own meals: “quaint” only when applied to terror captives.

Even though the President declared that captives taken in the war against Al Qaeda were not covered by the Geneva Conventions, none of the authorized interrogation techniques came close to torture. I do not regard questioning a terror detainee past his bedtime as cruel. Prisoner abuse happened in violation of interrogation rules and policies, not by following them.

Hutson: 1/27/05, 09:10 AM
Your argument is strong and I know a lot of people subscribe to it, but you won’t be surprised if I tell you that I think it is flawed for a couple reasons. One is that while I think you are probably right that whether we adhere to Geneva or not won’t affect the behavior of the enemy one way or the other, I’m not positive that you’re right so we shouldn’t concede that point. It’s too important a question to give up on unless we are absolutely sure. If we conduct “civilized war” (more on that later), it may incrementally improve their conduct. On the other hand, I believe the inverse is certainly true—if we wage uncivilized war, their conduct will get worse and worse. For example, I can’t believe that Abu Ghraib hasn’t hurt our effort.

But even if you are right and it doesn’t make any difference to the enemy one way or the other, why shouldn’t we take the high road even if we do it unilaterally? It’s who we are. It’s who we have been, or strived to be, for generations. The United States has been a strong, unwavering advocate for human rights and the rule of law for as long as you and I have been alive. I’m not ready to throw in the towel on that just because we are in a battle with some terrible people. In fact, in a war like this, when we are tempted to respond in kind, we must hold ever more dearly to the values that make us Americans. Torture, or “cruel, inhuman or degrading” conduct, are not part of our national character.

Another objection is that torture doesn’t work. All the literature and experts say that if we really want usable information, we should go exactly the opposite way and try to gain the trust and confidence of the prisoners. Torture will get you information, but it’s not reliable. Eventually, if you don’t accidentally kill them first, torture victims will tell you something just to make you stop. It may or may not be true. If you torture 100 people, you’ll get 100 different stories. If you gain the confidence of 100 people, you may get one valuable story.

Remember, too, it’s not a walk in the park to be a prisoner of war. No one, certainly not me, is advocating the “downy quilts and perfumed sheets” to which you refer. I think wooly blankets are adequate (that’s a joke).

By the way, are you really so sure they want to “destroy us completely”? I’m not even sure I know what that means. That 260 million Americans are dead? I don’t think even the fanatics we are fighting think that is possible. They want to cause us terrible pain. They want us out of the region. But I’m not sure destroying us completely is their goal. Indeed, as you correctly point out, this is not an organized army sponsored by a nation state. I assume their various factions have equally various goals.

Now, a word about “civilized war.” Sure, it’s an oxymoron, but it’s a goal we should strive to achieve. War can get a lot worse. It has been in the past. It’s a fearful endeavor under any circumstances, but we dare not give up waging civilized war. If we do, we really, really, really, won’t like what it can degrade to. 9/11 gave us a hint. I think that even if it is only us trying to stay on the high road, it’s worth the effort.

This isn’t the last war we will fight. It’s not even the next to last war. In the end, adherence to Geneva will protect U.S. troops in this war and all the future wars.

Mac Donald: 1/27/05, 04:20 PM
You have a far more hopeful understanding of terrorist psychology than I do, John. You hold out the possibility that Al Qaeda detainees will be so moved by being accorded prisoner of war status that they may “incrementally improve their conduct.” This strikes me as absurd. Al Qaeda is already well-aware of our humane standards of prisoner treatment and wants to kill as many innocent American civilians as it can anyway. Their training manual presents our refusal to engage in torture as a contemptible sign of weakness. They urge their members to stage fake prisoner abuse incidents to report to Amnesty International and the Red Cross. I also don’t understand what an incremental improvement in terror conduct would look like: using a dirty bomb instead of a nuclear bomb?

Doling out POW status indiscriminately to combatants who violate every norm of “civilized war” is a sure-fire method of destroying the Geneva Conventions, because there would no longer be any incentive to comply. The international law regime is fragile enough, lacking powerful enforcement methods. It relies on subtle expectations of reciprocity. To dissolve the distinction between honorable soldiers and dishonorable terrorists will pull the former towards the latter, not vice versa.

The torture issue is a red herring, as is your admonition against waging “uncivilized war.” No one is advocating either. I have explicitly rejected torture, as has the Bush Administration. Our soldiers in Afghanistan and Iraq strove constantly to observe the Geneva Convention requirements for civilized war: They made sure to wear some sort of identifying insignia on the street and before entering homes, they set themselves probable cause standards for searches that were higher than in the U.S., any possibility that a strike would generate civilian casualties was always carefully debated by the Judge Advocate Generals.

What I have advocated is the careful use of stress interrogation techniques against terror suspects when they resist questioning. I believe that it is morally acceptable to question a terror suspect past his bedtime, to isolate him, or to play music to distract him from his resistance strategies. We can argue about whether such techniques would be permissible for a lawful prisoner of war under the third Geneva Convention; you would have to work hard to convince me that such techniques are “torture,” however. I do know that whether we employ such modest stress techniques on Al Qaeda suspects or confine ourselves to the traditional 16 psychological gambits codified in the Army Field Manual for use on POWs will have not the slightest effect on whether Al Qaeda terrorists go ahead with their next effort at mass destruction.

Why did interrogators—first in Afghanistan, then in Cuba—start experimenting with stress techniques—above all with lengthy interrogations that cut into a detainee’s sleep? Because they could not get information. The detainees brushed off the conventional methods that work on traditional Army grunts with total ease. Interrogators tried all the positive incentives they could, without effect. (Though eventually, the military became so conservative in its approach to questioning that even positive incentives were viewed as a form of coercion.) I have yet to hear a critic of our interrogation efforts suggest how he would have solved the problem.

Hutson: 1/28/05, 08:25 AM
The bottom line to me is this: without pretty strict adherence to some set of rules, in war the tactics and the strategy will gradually degenerate to the most base human instincts. You say I’m “more hopeful.” In fact, I think I may be less hopeful. I think we need to impose rules on ourselves to ensure that that kinds of activity that we have seen in the pictures, and heard about elsewhere including 40 death investigations, doesn’t occur. It’s beneath the dignity of the United States and offends the standards of humankind. If the terrorists want to do terrible things, that’s up to them. We just have to make sure we don’t.

You say, “Al Qaeda is already well-aware fo our humane standards of prisoner treatment.” I agree with all of that statement except one word, humane. Al Qaeda is certainly well aware of our standards of prisoner treatment. It’s been reported in the media around the world over and over and over in detail with pictures. The AP reports this morning about a new book written by a former U.S. guard at Gitmo on how we treated prisoners there. It ain’t pretty. Not just al Qaeda, but the entire world, is indeed well aware.

There is absolutely no doubt in my mind that the memos that Judge Gonzales wrote or was otherwise responsible for led directly to the misconduct we saw. I don’t contend that he was solely responsible. There were lots of watermelons at the top of the barrel in which the few bad apples were at the bottom. We’ll prosecute the few bad apples and promote the watermelons.

Everyone including Judge Gonzales says they abhor torture. Unfortunately, we were defining torture to include only pain which may involve permanent organ damage or death. When asked whether chopping of finger joints one at a time constituted torture, Judge Gonzales wasn’t sure. I just can’t buy that.

The Gonzales memos were written because the CIA, Rumsfeld, et al were frustrated because we weren’t getting good information using the interrogation techniques that the Army Field Manual, Geneva Conventions, Convention Against Torture, 100 years of U.S. history and all the rest permitted. Those rules were, as Gonzales so famously said, “obsolete.” (It’s not clear why the rules were obsolete in the case of alleged terrorists but not in every other modern war we’ve fought. It is the height of arrogance to argue that this war is worse than WWII, Korea, Viet Nam, the first Iraq War, etc. As I said above, the enemy is different in every war.) We are told that we needed to get more aggressive. Did it ever occur to anyone that there wasn’t information to be had? Maybe these prisoners didn’t know anything. If we got better information after we removed all the rules, I certainly haven’t heard about it. Was all the pain, loss of national self-respect and international opprobrium worth it?

Maybe the terrorists are tougher than the Germans, Japanese, Chinese, North Vietnamese. Maybe our interrogators are less effective. Whatever. We needed to start using techniques up to but not including permanent organ damage and death. But don’t worry, even if you cross over that line, your defenses are good if your did it in defense of the nation.

I think that is not an appropriate position for the United States to take and certainly not for the chief law enforcement officer of the United States. Judge Gonzales played a significant role in taking the United States off the high road of the rule of law and human rights down the slippery slope to the low road.

Mac Donald: 1/28/05, 06:48 PM
I happily sign on to your bottom line. To develop rules of war was a signal achievement of Western civilization that should be preserved. I also deplore the prisoner abuse and agree that it has gravely damaged America’s image.

But I do not believe that in experimenting with stress interrogation techniques for unlawful combatants, the United States threw aside the entire legal framework for war.

That experimentation began early on in Afghanistan. Frustrated interrogators daily confronted the total inefficacy of the traditional Army methods on Jihadist sympathizers. They agonized about how to break down prisoner resistance within the confines of the Geneva Conventions, and, after long debate, concluded that if an interrogation method was no worse than what American soldiers go through in basic training, it could not be a human rights violation. The intelligence officers at Kandahar and Bagram decided that a prisoner could be questioned past his bedtime so long as his interrogator lost sleep in the exact same amount.

The stress interrogation debate ultimately reached the Pentagon, when interrogators in Guantanamo ran up against the same fierce resistance by Al Qaeda trainees. For six months, every branch of the military argued over whether and how to supplement the 16 traditional approaches—this was not a lawless process. The seven additional methods ultimately approved for Guantanamo—which included changing someone’s sleep patterns from night to day, putting him on cold Army rations, impersonating a foreign interrogator, and isolation—required extensive bureaucratic supervision. They could only be implemented following high-level review. They represented not the suspension of rules, but a modification to them.

When abuse happened, it happened in violation of those rules, not because of them. The Fay report on Abu Ghraib reached that conclusion: “Neither Department of Defense nor Army Doctrine caused any abuses. Abuses would not have occurred had doctrine been followed.” The Schlesinger report agrees.

The claim that the infamous August 2002 “torture memo” (penned, by the way, not by Judge Gonzales, but by Jay Bybee) was responsible for prisoner abuse is wrong factually and logically. The stress methods that you equate with abuse were in development long before Bybee came up with his draconian torture definition, by people who had never heard of Jay Bybee or John Yoo. Moreover, to sustain your claim that the Bybee memo was crucial to the approval of stress techniques, you would need to show that sleep deprivation, say, could only pass muster under Bybee’s narrower torture definition as pain just short of death or major organ damage, but not under a more usual understanding of the “intentional infliction of severe pain or suffering.” I don’t think you can make that case: the approaches approved for both Cuba and Iraq would not qualify as torture under any definition.

Stress worked. Ask the interrogators. Marathon interrogations were the most powerful tool they had to break down resistance. There were most definitely high value targets among the Cuba detainees. Or so I would consider, to name just two, Mohamedou Ould Slahi—a Mauritanian al-Qaeda operative who had recruited two of the 9/11 pilots—and Mohamed al-Kahtani, the missing 20th hijacker. Half of the information in the 9/11 Commission Report came from interrogations. You are right, however, that among the high-value detainees were people with little intelligence value, picked up with an understandable excess of caution.

I can’t quite tell if you object to sleep deprivation and isolation because you think they are per se torture, or because you think they will lead down a slippery slope to torture. As I said, I do not find them torture. And I also don’t think we inevitably start down a slippery slope any time we modify a set of rules. The traditional Army interrogation methods—such as Fear Up Harsh or Bad Cop-Good Cop—could also lead to abuse. What keeps them from doing so is good management, something that was culpably lacking in Iraq. My guess is that if sleep manipulation had been originally included in the Army Field Manual, no one would object to it now.

Terrorists are in fact a radically different kind of combatant from your average infantry man in a tank or trench, both in their murderous disregard for humanitarian values and in their intelligence value. And the asymmetric war we are currently fighting is also radically different from classic Geneva wars between nation states. If terrorists really did fit into the Geneva framework, there would have been no movement to pass Protocol I. Thus, I find Judge Gonzales’ decision that Al Qaeda was not covered by Geneva III unimpeachable, and support his confirmation.

Finally, though we should not minimize the gravity of the abuse, we should not exaggerate it either. Using women’s thong underwear and fake menstrual blood against an Arab male may be a gross infraction of cultural norms, but if it were torture, Guantanamo detainees would not be fighting repatriation back to their terror-practicing homelands with such vigor.

Original Source: http://www.legalaffairs.org/webexclusive/debateclub_gonzales0105.msp

 

 
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