Category Archives: US Policy

Whether Israeli settlers are committing genocide is not a political question; Al-Tamimi’s case can proceed.

On February 19, 2019, the District of Columbia Court of Appeals reversed the lower court, and ruled that the case brought by Palestinians against Sheldon Adelson and other Americans can proceed.  Al-Tamimi v. Adelson, 2019 WL 660919 (C.A.D.C., 2019)

“The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute. They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse.”

Martin McMahon

Martin F McMahon, Attorney for the Palestinians

The Palestinians’ complaint is over 200 pages and and the Court’s summary is chilling:

The plaintiffs are eighteen Palestinians who mostly reside in the disputed territory and a Palestinian village council. The defendants, all American citizens or entities, are eight high-net-worth individuals, thirteen tax-exempt entities, two banks, eight construction and support firms and a former United States deputy national security advisor. The complaint alleges that the defendants engaged in a conspiracy to expel all non-Jews from the disputed territory. Specifically, the individual defendants (excluding Abrams) funneled millions of dollars through the defendant tax-exempt entities and banks to Israeli villages called “settlements.” Armed with this financial assistance, the settlement leaders hired full-time security coordinators who trained a militia of Israeli settlers to kill Palestinians and confiscate their property. The defendant construction and support firms destroyed property belonging to the plaintiff Palestinians and built settlements in its place and, here in the United States, the deputy national security advisor publicly endorsed the settlements. All defendants knew their conduct would result in the mass killings of Palestinians residing in the disputed territory. 

The lower court dismissed their complaint because it decided that five political questions were raised, and the courts typically avoid political questions which are better resolved by the Executive or Legislative Branches. 

Baker, the fountainhead of the modern political question doctrine, did not definitively resolve whether the doctrine is jurisdictional. Indeed, at one point, the Supreme Court suggested that the doctrine is not jurisdictional.

The political question doctrine arises from the constitutional principle of separation of powers. The “doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).

The DC Court of Appeals found that only two questions presented in the complaint are potentially political questions which might prevent the judiciary from considering the case. The first is who has sovereignty over the disputed territory? The other can be restated as: are Israeli settlers committing genocide?  To determine if these two questions are jurisdiction-stripping political questions, the Court of Appeals turned to the Baker factors. [Baker v. Carr, 369 U.S. 186 (1962)].

The first potential political question presented—who has sovereignty over the disputed territory—plainly implicates foreign policy and thus is reserved to the political branches. As the Supreme Court has explained, in our constitutional system questions regarding the “legal and international status [of Jerusalem] are … committed to the Legislature and the Executive, not the Judiciary.” Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II ), 135 S. Ct. 2076, 2081 (2015). What is true of Jerusalem specifically is true of the entirety of the disputed territory. In fact, the Executive Branch recently addressed the question who has sovereignty over the disputed territorySee Statement by President Trump on Jerusalem (Dec. 6, 2017), https://www.whitehouse.gov/briefings-statements/statement-president-trump-jerusalem (“We are not taking a position [on] any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders.” (emphasis added) ).  On the other hand, the second potential political question presented—are Israeli settlers committing genocide—is a purely legal issue.  And it is well settled that genocide violates the law of nations. Simon v. Republic of Hungary, 812 F.3d 127, 145 (D.C. Cir. 2016)

 

Genocide has a legal definition. See United Nations Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9, 1948, 78 U.N.T.S. 277, 280 (defining genocide, in part, as “[k]illing members of [a national, ethnic, racial or religious group]” “with intent to destroy [the group], in whole or in part”). Thus, the ATS—by incorporating the law of nations and the definitions included therein—provides a judicially manageable standard to determine whether Israeli settlers are committing genocide. We recognize that the Alien Tort Statute, 28 U.S.C.A. Sec. 1350 “enable[s] federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004)

Naturally, the Department of Justice didn’t want the courts involved in this case and argued that the complaint could create an inter-branch conflict because, “[g]iven the level of political and military support provided Israel by the American government, a judicial finding that the Israeli armed forces had committed the alleged offenses would ‘implicitly condemn American foreign policy by suggesting that the [government’s] support of Israel is wrongful.’ ” Gov’t Appellee’s Br. 16.

However, the DC Court of Appeals concluded this concern, although entitled to deference, is now moot as the plaintiffs have waived any theory of liability based on the conduct of the Israeli military.

Ultimately, we believe that the court would create an inter-branch conflict by deciding who has sovereignty over the disputed territory. By answering the question—regardless of the answer—the court would directly contradict the Executive, which has formally decided to take no position on the question. We do not believe, however, that the court would necessarily create an inter-branch conflict by deciding whether Israeli settlers are committing genocide. A legal determination that Israeli settlers commit genocide in the disputed territory would not decide the ownership of the disputed territory and thus would not directly contradict any foreign policy choice. 

In the final analysis, the DC Court of Appeals concluded that the question who has sovereignty over the disputed territory does present a “hands-off” political question, but the question whether Israeli settlers are committing genocide does not.

If it becomes clear at a later stage that resolving any of the claims requires a sovereignty determination, those claims can be dismissed.

So Al-Tamimi and the others who brought this case climbed a very steep mountain to reach the courthouse doors. They have been admitted in, and now must climb Mt. Everest if they are going to prevail on their claims.

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Filed under People, Politics, Settlers, Uncategorized, US Policy

The Human Spirit

Christmas message from December 2015, as relevant today as it was then, perhaps more so.   

World leaders have spent the last three years building walls, metaphorically and legally, to stem the tide of refugees. Donald Trump is demanding Congress cough up the money for his wall along the southern US-Mexico border, and now he’s closed down the U.S. government until they do. (Remember his campaign promise that Mexico would pay for the wall?)

The absurdities are limitless. We (meaning the colonial Western powers) preach free trade and no economic barriers, knowing the benefits flow primarily in one direction — ours.

We export our military and new-fangled weapons of hideous destruction to countries and people who have no means to resist our “gifts” of democracy.

We lock people up for years behind economic, political and cultural blockades (occasionally dropping cluster bombs and white phosphorous on them) because they don’t behave as we tell them they should. They refuse to obey.

Meanwhile, we continue to shop for the latest fashions, attend the posh parties, gush over every theatrical production, and toast to the New Year.  The hypocrisy of all hypocrisies is that we believe we can live our lives free from the mayhem and chaos WE have spread throughout the world; that our selfish, malevolent actions have no consequences!

Until our leaders grasp the “cause and effect” of our exploitations abroad, we will continue to see desperate people fleeing desperate circumstances of our own making.

The human spirit seeks life.  I also believe the human spirit seeks to help those in need. 

Mural

Mural in Patras, Greece

That’s why Somer Sood, a California mother, created a nonprofit to bring backpacks to refugee children in Greece, along with some joy and dignity.

That’s why an American lawyer from Hawaii founded Advocates Abroad to provide legal assistance to refugees in Greece.

That’s why Sayrah Namaste, a New Mexico mother, regularly goes to the US-Mexico border to help refugees there.

And that’s why Judy Werthein, an Argentinian artist, created a new brand of shoes in 2005. (Brinco means jump in Spanish)  She distributed the trainers free of charge to people attempting to cross the border in Tijuana, Mexico. At the same time, just over the border in San Diego, she sold the shoes as ‘limited edition’ art objects for over $200 a pair. Wertheim donated part of the money she raised to a Tijuana shelter helping the migrants.

Today, they are on display in London at the Tate Modern Art Museum.

 

The trainer’s design includes eagle motifs inspired by American and Mexican national symbols, and an image of Saint Toribio Romo, the patron saint of Mexican migrants. The shoes also feature a torch, a compass and pockets to hide money and medicine. Printed on a removable insole is a map of the border area around Tijuana.

Werthein had the Brinco trainers produced cheaply in China. Many global companies manufacture products in countries where labour is cheap and often poorly regulated. The artist hopes to draw attention to how easily goods move between countries, compared with the strict regulations around the movement of people. The same governments that allow the import of cheap goods from overseas often strictly control, and actively discourage, migrants from entering the country in search of better living conditions.

Lora Lucero’s spirit wants to help refugees. Today it may be as little as purchasing and donating a cot to the shelter and shipping it to Las Cruces. Here is the address for shipping: Project Oak Tree 1280 Med Park Drive Las Cruces, NM 88005.

Tomorrow?  I hope I find the answer I’m searching for in 2019 — how can Lora best help the refugees seeking safety and security?

 

 

 

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The gift of quiet self-reflection

I grew up in a mixed family (Christian and Jewish). As a child, I loved opening a gift each evening of Hanukkah, and then on Christmas morning, opening a whole bunch more. As a spoiled, middle-class brat, both holidays for me were all about the gifts, with a smattering of religious ceremony and reflection thrown in for good measure.

Nearly half a century later, when I was living in Gaza for a few months (2012-2013), many new friends asked me “What are you? A Christian? A Jew? Something else?” Labels help us make sense of each other, but my standard response to my inquisitors was not so simple.

After explaining my family traditions, I told my new friends that I don’t consider myself a member of any organized religion today, followed by their expressions of  astonishment or disgust. Then I would explain that I try to live my life by one simple (yet not so simple) rule — to treat others as I would want them to treat me. The Golden Rule in the Christian faith is also a bedrock principle in Judaism and Islam.

Last night I wished my Jewish family, friends and colleagues a quiet time of reflection on this first night of Hanukkah 2018. Here’s what I wrote on social media:

I believe tonight is the beginning of Chanukah. I was going to wish my Jewish family and friends a “Happy Chanukah” but instead will wish each of you a time of self-reflection about what it means to be a Jew after 50 years of Israel’s military occupation. How is that working for you? How does it make you feel? I hope you have quiet time to reflect.

The responses ranged from disappointment tinged with anger, to support and agreement. (I’ve copied several below without author identification.

Wow, I have reflected on your post and am saddened. We always celebrated this holiday in the spirit of hope for humanity and kindness. None of us free from association with a country that has committed acts of brutality and sometimes barbarism. As Americans, we can point to any number of atrocities. To use the actions of a government to issue such a wish to a people, such as the Jews, is inappropriate.

And then this —

I absolutely agree [with the previous comment]. This is like asking those who observe Christmas how they feel about celebrating a holiday associated with a religon that committed the worst brutality and atrocities ever in the name of furthering its creed.

Writer #1 offered further —

We do not succeed in changing people’s hearts and minds through insulting them. I have worked on many campaigns, invested time, money, and effort to influence policies toward justice. I feel it is dangerous to say that Jews who are citizens of other countries are responsible for the Israeli government’s atrocities. The occupation needs to end, but we will not build a coalition by this approach.

And then a third writer chimed in —

I was going to wish my white American family and friends a “Merry Christmas” but instead will wish each of you a time of self-reflection about what it means to be white American, with access to all of America’s privileges, after a century of U.S. imperialism from death squads in Latin America to Vietnam to drones, the NSA, and support for Saudi Arabia. How is that working for you? How does it make you feel? I hope you have quiet time to reflect.

How does that sound to you Lora? It sounds very condescending and patronizing to me. To say that, I would be setting myself above the people I’m talking to, saying “*I* have reflected on these issues and obviously you haven’t so I’m asking you to do so”.

What you said is worse because, while Americans do have some responsibility for America (to the extent that our democracy works, which is not very well), you are assigning to all Jews responsibility for Israel. I do think it’s especially important for us as American Jews to oppose what Israel is doing, because the position of American Jews plays at least some role in American policy toward Israel (though again, in practice, there is not much democratic power). But that doesn’t mean we are responsible for Israel’s actions simply because we are Jews.

hanuka1Others felt I was conflating Jews with Zionists, which I’m clearly not.  Surprisingly, no one has called me an anti-Semite, usually the default position for many who disagree with my words.

A time of reflection is what I wish — and I hope the reflection is focused on Israel’s half-century brutal and dehumanizing military occupation of the Palestinians.

Why should American Jews reflect on Israel’s actions?

  • Because Israel’s government officials have declared ad nauseum that they represent Jews worldwide, and have even invited Jews living anywhere on Planet Earth to come make their home in Israel. (That will certainly help with the “demographic threat.”)
  • Because the U.S. government has aided and abetted this 50 year occupation with the largest financial aid appropriations made to any country (most recently $38 Billion over the next 10 years). The U.S. consistently shields the State of Israel from being held accountable at the United Nations. The U.S. Congress gives Israel’s leader standing ovations when he speaks at the U.S. Capitol, and it is certainly clear that the vast majority of Congressmembers are at the beck and call of AIPAC, Israel’s lobbying organization in the U.S.
  • Because Israel’s three military campaigns against the Palestinians in the Gaza Strip, its 12+ years of economic, political and cultural siege on Gaza, and its deliberate killing of men, women, children, paramedics, and journalists at the #GreatReturnMarch at the fence between Israel and Gaza since March 2018, has occurred without any reprecussions, and no Israeli leaders have been held accountable. The killings will surely continue.
  • Because American Jews can and are playing a very important role in educating Congress that “Israel doesn’t speak for us” and younger American Jews are distancing themselves from Israel by greater numbers every year. Some personal reflection must have helped move these particular Jews to speak up and against the occupation.
  • Because when an American Jewish constitutent has an opinion to share about Israel with their member of Congress, I believe it carries much greater weight than my opinion (no matter how informed or eloquent I may sound.)

My Hanukkah wish casts no blame on Jews as a group or as individuals, despite what some writers above might have felt. That’s perhaps the biggest reason why my Jewish family, friends and colleagues should spend some time this Hanukkah in self-reflection on the issue I’ve raised. They may be carrying the weight of Israel’s horrific human rights abuses but they shouldn’t.  Quiet reflection may do the soul some good.

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Filed under Spiritual - Religion, Uncategorized, United Nations, US Policy

US Mimics Israel at US-Mexico Border

No More War

My social media Facebook feed is overwhelmed with photos and messages of horror about the current actions of the U.S. military at the US-Mexico border.  Check out the story here, if you haven’t seen it.

We (I use that pronoun deliberately) have closed the border and we are now violently throwing tear gas canisters and shooting rubber bullets at men, women and children migrants.

Here are several videos of the migrants being attacked at the US-Mexico border.

I’m not shocked by Trump’s aggressive and violent response at the border, and neither should any American be shocked. We’ve been watching the same actions occurring at the fence (not border) separating Israel and the Gaza Strip since March of this year.

Israel, our best friend and ally in the Middle East, has deployed its military to the perimeter fence line shared with Gaza to shoot tear gas canisters, rubber bullets, and live bullets at Palestinian men, women and children participating peacefully in the Great Return March. 

Palestinians have paid a great price for their call for life with dignity during mass protests held along Gaza’s boundary with Israel over the past eight months.

Some 180 Palestinians have been shot dead by Israeli occupation forces and nearly 6,000 others injured by live fire during the Great March of Return.


Altogether, a staggering 24,000 Palestinians have been injured during the Great March of Return protests – more than one percent of the territory’s population.

See Maureen Clare Murphy’s full article here.

Neither Trump nor the U.S. Congress has stood up to Israeli leaders and told them to stop this barbarity.  Trump probably thinks he has the tacit support of Congress for his deployment to the US-Mexico border.  The US and Israel are playing by the same playbook now. Americans shouldn’t be surprised.

I, for one, fully expect snipers to be deployed at the US-Mexico border. And I won’t be surprised when the U.S. military is deployed against Americans inside our country. This action today against the migrants in the South is only a precursor to future, more aggressive actions to support our nascent Fascist government.

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Filed under Gaza, Israel Defense Forces, People, Uncategorized, US Policy, Video

My Letter to Senator Rand Paul

November 24, 2018

Dear Senator Paul,

Although I don’t agree with you on many issues, I applaud your decision to place a hold on the U.S.-Israel Security Assistance Authorization Act of 2018, which cements in the $38 billion weapons deal over the next 10 years that former President Obama struck with Netanyahu.  I suppose the proponents of this deal want it sealed into law (rather than merely an executive MOU) so that it won’t be subject to a change of heart in the future.  After all, $38 billion IS a lot of money and could pay for some big ticket items at home — healthcare, pre-K education, failing infrastructure, for example.

If American taxpayers only knew how our contributions to the U.S. Treasury are subsidizing the human rights violations and instability in the Middle East.

The Congressional Research Service’s report “U.S. Foreign Aid to Israel,” written by Jeremy M. Sharp, Specialist in Middle Eastern Affairs, dated April 10, 2018, provides the following:

According to the report, the United States gave Israel $3.1 billion for Fiscal Year 2018 in direct bilateral military aid (also referred to as Foreign Military Financing or FMF). Congress also authorized $705.8 million for “joint” U.S.-Israel missile defense programs (designed to protect Israeli territory from potential outside threats), bringing total military aid to Israel to more than $3.8 billion per year.

Put another way, American taxpayers give Israel over $10.5 million per day. Over the last 20 years, the U.S. has slowly phased out economic aid to Israel and gradually replacing it with increased military aid. In September 2016, the United States and Israeli governments signed a new ten-year Memorandum of Understanding (MOU) where the U.S. pledged to give Israel $38 billion in military aid ($33 billion in FMF grants plus $5 billion in missile defense) over the course of 10 years (FY2019 to FY2028). This new MOU replaces the current $30 billion 10-year agreement signed by the Bush Administration that will expire in 2018.

Israel is by far the largest recipient of U.S. foreign military aid (see how other nations compare). According to the CRS report, the President’s request for Israel for FY 2017 will encompass approximately 54% of total U.S. foreign military financing worldwide. The report continues, ” Annual FMF grants to Israel represent approximately 18.5% of the overall Israeli defense budget. Israel’s defense expenditure as a percentage of its Gross Domestic Product (5.4% in 2015) is one of the highest percentages in the world.”

Contrary to ordinary U.S. policy, Israel has been and continues to be allowed to use approximately 26% of U.S. military aid to purchase equipment from Israeli manufacturers. According to CRS, “no other recipient of U.S. military assistance has been granted this benefit.”

Thanks in part to this indirect U.S. subsidy, Israel’s arms industry has become one of the strongest in the world. Between 2001 and 2008, Israel was the 7th largest arms supplier to the world, selling $9.9 billion worth of equipment. And it continues to grow stronger. In 2015, Israel sold $5.7 billion in military goodsto other countries.

The former assistant Secretary of Defense from 2007 to 2009 asked, “How inexplicable is it that we are competing against the Israelis in the Indian defense procurement market at the same time we are subsidizing the Israeli defense industry?”

A U.S. government source estimates that Israel is using approximately $1.2 billion each year (38.7% of the aid it receives from the U.S.) to “directly support its domestic budget rather than to build on its arsenal of advanced US equipment.”

By all accounts the United States has given more money to Israel than to any other country. The Congressional Research Service’s conservative estimate of total cumulative US aid to Israel from 1949 through 2015 is $127.4 billion (not adjusted for inflation).

Please hold firm on your decision to oppose the  U.S.-Israel Security Assistance Authorization Act of 2018.

Sincerely,

Lora A. Lucero

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Filed under Israel, People, Politics, US Policy, Video

Movement

I’m reminded in so many ways that movement is a human right that many of us take for granted. And the politicization of movement is abhorrent.

Article 13 of the Universal Declaration of Human Rights asserts that:

  • citizen of a state in which that citizen is present has the liberty to travel, reside in, and/or work in any part of the state where one pleases within the limits of respect for the liberty and rights of others,
  • and that a citizen also has the right to leave any country, including his or her own, and to return to his or her country at any time.

Consider the following:

President Trump has sent 5,000 troops to the US-Mexico border to erect concertina wire in an effort to thwart immigrants traveling in a caravan from Central America. The first are arriving in Tijuana this week.

A Palestinian friend from Gaza has recently been granted asylum in the UK (“Liberation from the Israeli occupation & oppression and freedom from social and cultural restrictions”) and he now has a UK travel document (“Reclaimed my freedom of movement”).

Another Palestinian friend sits with me at an outdoor cafe in Cairo and looks up into the sky. He points to the commercial airplane flying overhead and tells me “We never see such planes in the skies over Gaza; only Israeli military jets and drones.”

A Jewish American lawyer has been working with refugees in Greece for several years in their applications for asylum. She has recently come under attack with death threats by Nazis who want to scare her away.

The-Erez-crossing-between-007

The Erez Crossing between Israel and Gaza. http://www.guardian.co.uk

A DHL employee in Cairo tells me that DHL can’t ship a box of books to Gaza for me, only envelopes. He says Israel has returned boxes with no explanation.

I want to speak with my US Embassy in Cairo about getting permission to travel across the Sinai to Gaza. The earliest available appointment is December 10, in one month. Are they really THAT busy?

Walking around the pyramids at Giza, my Palestinian companion is stopped twice by different security forces who take him aside. They want to see his travel documents, and pat him down. I step closer to him and when they see that we’re traveling together, they wave us both through.

Movement is power. If you can move freely, you have power. If you can prevent another from moving, you have power.

Movement is essential for accessing any other rights or freedoms. No movement = no health.  No movement = no education.  No movement = no dignity.

border

Israel’s separation barrier

While the U.S. and Israel spend their bloated military budgets ostensibly on security, but practically on thwarting the basic right of freedom of movement, the world grows ever more dangerous and deadly for many more people.

What would happen if we redirected our military budget into a global humanitarian budget, while welcoming refugees with open arms?

 

 

 

 

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UNRWA AND PALESTINE REFUGEE RIGHTS – New Assaults, New Challenges

By Francesca P. Albanese (Published in Institute for Palestine Studies, November 2018)

Francesca_Albanese

Francesca Albanese

Although most Americans may not be aware of President Trump’s assault on the U.N. agency responsible for the Palestinian refugees, United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) — those of us who keep our attention focused on Israel & Palestine have been watching his Administration’s pronouncements this year with a mixture of alarm, disgust and disdain.

In her monograph (available here) Francesca P. Albanese has clearly summarized Trump’s actions vis-a-vis UNRWA and the Palestinians, spelled out how his actions are contrary to historical facts and international law, and concluded with a commonsense recommendation: if the U.N. General Assembly believes that UNRWA needs to be reformed, then bring it up for discussion within the framework of UN rules and procedures. The United States and Donald have no authority (much less competence) to unilaterally reform any U.N. agency.

It’s very unlikely that anyone in the current U.S. Administration will take the time to read or digest Albanese’s points, but I’m going to forward it to members of Congress (especially the new ones taking office in January) because their staff needs to have this information in their arsenal. It might come in very handy when drafting speeches or arguments against Donald’s destructive notions of reforming UNRWA.

Access and read her full monograph here.

And today is always a good day to make a tax-deductible donation to UNRWA-USA to help provide critical mental health services to Palestinian refugees in Gaza.  Check out my fundraising page here. Thank you.

Francesca Albanese is a human rights lawyer (LL.M, SOAS) who spent 12 years working in the field of human rights, including with the UN Office of the High Commissioner for Human Rights and more recently with the UN Agency for Relief and Work of Palestine Refugees in the Near East. Her legal expertise includes research, policy advice and capacity building on various human rights issues -mainly in Asia and the MENA region. This includes the protection of refugees and migrants,  interaction with the international human rights system, the establishment of national human rights institutions and mechanisms for the prevention of torture.

 

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