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Children's Rights: Greece

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Based on the constitutional mandate to protect and safeguard children and on its international obligations arising from ratifications of agreements on children's rights, which have the status of domestic law upon ratification, Greece has enacted various laws and has adopted a number of measures and services to promote and advance the rights of the children. The topics covered in this report are health and social welfare, education, labor and exploitation, and juvenile justice. In 2002, the Greek Parliament adopted a new law on human trafficking, and the government has allocated a number of resources in an effort to eliminate this scourge. In 2003, the juvenile system was reformed. An additional law was enacted in 2006 to combat intra-family violence, which also encompasses a prohibition of corporal punishment of children.

The Children's Rights: Greece report from the Law Library of Congress contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sexual exploitation of children, sale and trafficking of children, and juvenile justice. Visit our Web site to read the report.
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Children's Rights: Japan

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Japan is a signatory of many international conventions which aim to protect the rights of children. There are various domestic laws to promote children's well-being. Almost all children in Japan are covered by health care insurance. Families with small children which do not have a high income level can receive an allowance from the government. Local governments support pregnant women's and infants' health and give advice to them. Schools also provide health examinations. Parents are obliged to have their children attend primary and secondary schools for nine years. The government provides this mandatory education free of charge. There are provisions which punish acts that harm children, both in special laws and in the Criminal Code. There is a juvenile justice system which is separated from the normal criminal justice system.

The Children's Rights: Japan report from the Law Library of Congress contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sale and trafficking of children, juvenile justice, and concluding remarks. Visit our Web site to read the report.
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Children's Rights: Israel

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Israel adheres to international conventions to which it is a signatory and maintains a special set of laws to protect children. In addition to health benefits applicable to all Israeli residents, special benefits apply specifically to pregnant women and children. Special welfare benefits are also directed at assisting families with children and, particularly, the disabled. The law requires at least ten years of compulsory education and protects children from labor and sexual exploitation. The system recognizes different rules in the adjudication of juveniles.

Israel maintains an extensive system of laws designed to protect children's rights. It is a signatory to numerous international conventions and provides many health and welfare services to children. Special protections apply in the areas of child labor and sexual exploitation. Children enjoy different treatment in the juvenile justice system than adults do in the regular justice system.

The Children's Rights: Israel report from the Law Library of Congress contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sale and trafficking of children, juvenile justice, and concluding remarks. Visit our Web site to read the report.
Categories: Research & Litigation

Constitutional Law: Military Tribunals

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Law Library of Congress is proud to present two constitutional law items focusing on Military Tribunals. The two articles are available in their entirety in PDF on our Web site.

Louis Fisher, "Military Commissions: Problems of Authority and Practice," 24 Boston U. Int'l L. J. 15 (2006). In deciding to authorize military commissions on November 13, 2001, President George W. Bush relied primarily on the Supreme Court's decision in Ex parte Quirin (1942). A close look at Quirin reveals a process and a decision with so many deficiencies that it should be remembered as a precedent not worth repeating. Other precedents cited by the administration for independent executive authority, including the trial of John Andre in 1780, are also misleading. Allowing military commissions to operate on the exclusive or "inherent" authority of the President poses a serious threat to basic constitutional principles, including the war prerogatives of Congress, separation of powers, and checks and balances.

Louis Fisher, "Detention and Military Trial of Suspected Terrorists: Stretching Presidential Power," 2 J. Nat'l Sec. L. & Policy 1 (2006). Although the Bush administration after the 9/11 terrorist attacks claimed independent authority to create military tribunals, Congress under the Constitution has primary responsibility over military courts, tribunals "inferior to the Supreme Court," "Offenses against the Law of Nations," the war power, and "Rules concerning Captures on Land and Water." This article covers the key differences between the German saboteur case of Ex parte Quirin (1942) and the Bush tribunals, the importance of the Non-Detention Act of 1971, and the litigation that challenged the Bush military tribunals, including the Supreme Court decisions of Hamdi v. Rumsfeld (2004) and Hamdan v. Rumsfeld (2006).
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Constitutional Law: State Secrets Privilege

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Law Library of Congress is proud to present four constitutional law items focusing on the State Secrets Privilege. The two articles, one statement to Subcommittee on the Constitution, Civil Rights, and Civil Liberties, and one statement to the Senate Committee on the Judiciary are available in their entirety in PDF on our Web site.

Louis Fisher, "The State Secrets Privilege: Relying on Reynolds," 122 Pol. Sci. Q. 385 (2007). The George W. Bush administration has invoked the state secrets privilege as an absolute bar to litigation whenever the administration determines that the disclosure of agency documents would harm national security. The cases involve such areas of law as NSA surveillance and extraordinary rendition. This article analyzes the Supreme Court case relied on primarily by the administration, United States v. Reynolds (1953), which for the first time recognized the state secrets privilege. The Court's decision did great damage to the integrity of the judiciary, the rights of private litigants, and the constitutional system of checks and balances.

Statement by Louis Fisher, presented to the Subcommittee on the Constitution, Civil Rights and Civil Liberties of the House Committee on the Judiciary, "Reform of the State Secrets Privilege," January 29, 2008. Following the terrorist attacks of 9/11, assertions of the state secrets privilege pose a greater threat to constitutional government and individual liberties in such cases as NSA surveillance and extraordinary rendition. Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to documents without jeopardizing national security. Self-interested executive claims may override the independence of the federal judiciary, the corrective mechanism of checks and balances, and the right of private litigants to have their day in court. Congress needs to enact legislation to strengthen the adversary process that we use to pursue truth in the courtroom.

Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability," February 13, 2008. The state secrets privilege is now a central issue and Congress is the appropriate branch of government to supply much needed procedures and governing principles. It is critical that we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to another. The executive branch is not entitled to "utmost deference" or even "deference." In the past, federal courts have been misled by executive claims about national security, including in the seminal case of United States v. Reynolds (1953).

Louis Fisher, "People v. State: Security Secrets Must be Weighed Against American's Broader Interests," Legal Times, October 1, 2007, pp. 66-67. In recent cases involving state secrets, federal judges typically put the plaintiff's interest on one side of the scale and the government's interest (or "national interest") on the other. Under this test, the individual can be guaranteed to lose every time. Judicial analysis following this standard protects neither the plaintiff nor the nation. There is no national interest in picking up the wrong person (Khalid el-Masri, for example) and keeping him in prison for five months. El-Masri was not merely presenting his own interests. He represented every individual, U.S. citizen or alien, who wants to avoid a similar fate. Judicial deference to executive claims does not protect the national interest or the system of checks and balances.
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John Adams and the Boston Massacre Trial of 1770

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
As noted in the 2008 HBO mini-series chronicling the life and career of John Adams (1735-1826), as a young lawyer the future president served as counsel for the defense in the trial of eight British soldiers accused of murder during a riot in Boston on March 5, 1770. William Wemms, James Hartegan, William McCauley, Hugh White, Matthew Killroy, William Warren, John Carrol, and Hugh Montgomery, soldiers in the English 29th regiment of foot, were accused of murdering Crispus Attucks, Samuel Gray, Samuel Maverick, James Caldwell, and Patrick Carr. The case was heard at the Superior Court of Judicature, Court of Assize, and General Goal Delivery, on November 27, 1770, by adjournment, before justices Benjamin Lynde, John Cushing, Peter Oliver, and Edmund Troweridge.

The Law Library of Congress has copies of reports and transcripts of the court proceedings published in 1770, 1807, and 1824, as well as a history of the Boston Massacre consisting of the narrative of the town, the trial of the soldiers, and a historical introduction, containing unpublished documents of John Adams, and explanatory notes, published one-hundred years later in 1870. Adams's impassioned speech in defense of the soldiers resulted in their acquittal: it was reprinted in a character sketch by John Willard published in 1903.

Details concerning these publications including the full text of three of these rare items are available on our Web site.
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Law Day

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Law Day is a national day to celebrate the rule of law and its contributions to the freedoms Americans enjoy. This guide provides commentary and recommended resources concerning Law Day.

Visit our Web site to read more about Law Day from the Law Library of Congress.
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European Union: Lists of Terrorist Persons or Organizations

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
In the aftermath of September 11, 2001, the European Union responded immediately by adopting several legal instruments to implement Security Council Resolutions and to deal with the terrorism threat within the EU more effectively. Part of this undertaking was the drafting of two lists of terrorist individuals and organizations, one prepared under the authority the Sanctions Committee of the Security Council and endorsed by the EU, the UN/EU list; and the other, the EU list, prepared unanimously by the Council of the EU.

Both lists have raised fundamental rights questions and have been challenged before the European Courts by those listed who claimed to be included unjustifiably. In the cases of Yusuf and Kadi, the European Court of Justice upheld the EU/UN regime. On the other hand, in the case of the Organisation des Modjahedines du Peuple Iranien (OMPI), the Court annulled the decision of the Council relating to the inclusion of OMPI on the EU list. The Court did not invalidate the Regulation on the basis of which the list was prepared. Thus, the Regulation is still in force. The Council has announced that it plans to make its listing and de-listing procedure more transparent and that it intends to provide a statement of reasons to individuals or entities subject to the freezing of assets.

Visit our Web site to read the entire report on the European Union: Lists of Terrorist Persons or Organizations from the Law Library of Congress.
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Japan: Article 9 of the Constitution

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Japan's post-Second World War constitution was born when Japan was occupied by Allied forces. During the first stage of the occupation, the Supreme Commander of the Allied Forces and legislators of the constitution thought Japan would not have a military force again. Article 9 of the Constitution renounces war and prohibits Japan from maintaining the war potential. However, as the United States changed its policy of demilitarizing Japan when the United States asked her to share the burden of maintaining the security of Japan and, for the sake of international peacekeeping, Japan gradually increased its defense capability and developed a somewhat more technical interpretation of article 9.

Article 9 does not prohibit Japan from maintaining her defense capability. Article 9 had been popular in Japan for a long time; but as the Japanese started to take their security more seriously, more people have begun to accept the idea of amending article 9 of the Constitution. The ruling party, the Liberal Democratic Party, will bring the Constitutional amendment proposal to the Diet within the next few years.

Visit our Web site to read the entire report on article 9 from the Law Library of Congress.
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Children's Rights: Iran

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Islamic Revolution of 1979 introduced drastic and fundamental changes in the social, economic, and political structure of Iran. It marked the end of a 2,500 year-old monarchical regime and brought into power a religion-oriented government based on the Shiite school tenets of Islam. The change in the nature of the regime from secular to religious had its impact both on domestic legislation and international conventions.

The Children's Rights: Iran report from the Law Library of Congress contains information on international conventions and domestic legislation.
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Children's Rights: Germany

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Germany is a party to the global conventions that protect the rights of the child, yet Germany prefers to interpret these according to the precepts of European agreements, in particular the European Human Rights Convention, and also in accordance with German Constitutional guarantees. Germany has generous systems of health care and social welfare that benefit all citizens and long-term residents, while being less generous for new immigrants. The education system differentiates between vocational and college-bound tracks, and that is sometimes criticized in international comparisons. Problems occur in particular with the children of immigrants. Stringent laws against child labor are fully enforced, as are criminal provisions against the sexual exploitation of children and human trafficking. The juvenile justice system was path-breaking in the 1920s, but more recently it has borrowed ideas from the United States, particularly on diversion.

The Children's Rights: Germany report from the Law Library of Congress contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sale and trafficking of children, juvenile justice, miscellaneous issues, and concluding remarks.
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Constitutional Law: Presidential Inherent Powers

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Law Library of Congress is proud to present four constitutional law items focusing on Presidential Inherent Powers. The four articles are available in their entirety in PDF.

Louis Fisher, "Treaty Negotiation: A Presidential Monopoly?," 38 Pres. Stud. Q. 144 (2008). This article examines the claim by Justice George Sutherland in United States v. Curtiss-Wright (1936) that the President makes treaties with the advice and consent of the Senate "but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it." This statement was dicta and extraneous to the issue before the Court, but it is also at odds with Senate history and Sutherland's own experience as a U.S. Senator from Utah. Senators (and Representatives) have often been involved in the negotiation of treaties.

Louis Fisher, "Presidential Inherent Power: The 'Sole Organ' Doctrine," 37 Pres. Stud. Q. 139 (2007). The executive branch often relies on the "sole organ" doctrine to define presidential power broadly in foreign relations and national security, including assertions of inherent executive power that is not subject to legislative or judicial constraints. The doctrine draws from a statement by John Marshall when he served as member of the U.S. House of Representatives in 1800: "The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations." In dicta in the case of United States v. Curtiss-Wright (1936), Justice George Sutherland took Marshall's statement out of context to advocate an independent, plenary, exclusive, and extra-constitutional power for the President, but Marshall made no such claim in his speech or in his public service as Secretary of State and Chief Justice of the Supreme Court.

Louis Fisher, "Invoking Inherent Powers: A Primer," 37 Pres. Stud. Q. 1 (2007). At various times in American history, Presidents have claimed "inherent" powers to take certain actions in periods of emergency. President Truman's seizure of steel mills in 1952 is one example. Another is the claim by President Nixon that he could order domestic surveillance. Those claims were struck down in court. This article provides an overview of inherent powers and focuses particularly on its application during the presidency of George W. Bush to military commissions, detaining "enemy combatants," the "torture memos" prepared by attorneys in the Justice Department, extraordinary rendition, and NSA eavesdropping.

Louis Fisher, "The 'Sole Organ' Doctrine," August 2006, a paper prepared for the Law Library as part of a series of studies on presidential power in foreign relations. The paper provides a detailed examination of the "sole organ" doctrine made popular by Justice George Sutherland in his opinion in United States v. Curtiss-Wright (1936). The study explains why his use mischaracterizes what John Marshall said in a floor speech in 1800, while a member of the U.S. House of Representatives, and includes critiques and analyses by scholars and judicial citations to "sole organ." Although the Supreme Court has at times described the President's foreign relations power as "exclusive," it has not denied to Congress its constitutional authority to enter the field and reverse or modify presidential decisions in the area of national security and foreign affairs.
Categories: Research & Litigation

Constitutional Law: War Powers

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Law Library of Congress is proud to present four constitutional law items focusing on War Powers. The three articles and one statement to the Senate Committee on the Judiciary are available in their entirety in PDF.

Louis Fisher, "Thomas F. Eagleton: A Model of Integrity," 52 St. Louis U. L. J. 97 (2007). This article describes the leadership of Senator Eagleton from 1971 to 1973 with the War Powers Resolution. He backed a bill that tracked closely the intentions of the framers, permitting unilateral presidential action only in selected areas (e.g, repelling sudden attacks). The House passed legislation placing no such restrictions but relying on presidential reporting. The bill that emerged from conference committee so favored presidential power, in Eagleton's view, that he opposed it and spoke strongly for constitutional principles and legislative prerogatives. Senator Eagleton "had taken an oath to support and defend the Constitution and that dedication provided all the lodestar he ever needed."

Louis Fisher, "Domestic Commander in Chief: Early Checks by Other Branches," 29 Cardozo L. Rev. 961 (2008). This article looks to the early years of the republic to understand the scope, purpose, and boundaries of the Commander in Chief Clause. The framers viewed the Clause within the context of republican government where ultimate power is placed not in a single executive but with the people and their elected representatives. Covered within this article is the distinction between offensive and defensive wars, military actions against Indians, the militia act of 1792, the Neutrality Proclamation of 1793, the Whiskey Rebellion of 1794, the Alien and Sedition Acts of 1798, and judicial rulings from 1800 to 1806.

Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Exercising Congress's Constitutional Power to End a War," January 30, 2007. This testimony explains the democratic principles that guided the framers, the rejection of monarchical power, the distinction between offensive and defensive wars, separation of purse and sword, the scope of the Commander in Chief Clause, the Constitution in practice, and contemporary statutory restrictions, including the cutoff of funds in 1973 to end the Vietnam War, prohibitions on CIA paramilitary activities in Angola, limitations imposed on assistance to the Contras in Nicaragua leading to the Iran-Contra scandal in 1987, authority for the Gulf War of 1991, and statutory requirements to withdraw U.S. troops from Somalia by March 31, 1994.

Louis Fisher, "Deciding on War Against Iraq: Institutional Failures," 118 Pol. Sci. Q. 389 (2003). This article analyses the performance of U.S. political institutions in authorizing the war against Iraq in October 2002. It concludes that the Bush administration failed to provide reliable information to Congress to justify the war and relied on tenuous, unsubstantiated claims that were regularly discredited. The article also concludes that Congress failed in its institutional duties, both by voting on the Iraq Resolution without sufficient evidence and by drafting the legislation in such a way that it left the power to initiate war in the hands of the President, exactly what the framers had tried to prevent.
Categories: Research & Litigation

The Politics of Executive Privilege

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Louis Fisher, The Politics of Executive Privilege (Durham: Carolina Academic Press, 2004), 272 pp. Presidents and their advisers cite various legal principles when they withhold documents from Congress and refuse to allow executive officials to testify before congressional committees. Congress can marshal its own impressive list of legal citations to defend legislative access to information, even when Presidents assert executive privilege. These legal and constitutional principles, finely-honed as they might be, are often overridden by the politics of the moment and practical considerations. Efforts to discover enduring and enforceable norms in this area invariably fall short.

This book (individual chapters attached) explains the political settlements that decide most information disputes. Courts play a role, but it is a misconception to believe that handy cites from judicial opinions will win the day. Efforts to resolve interbranch disputes on purely legal grounds may have to give ground in the face of superior political muscle by a Congress determined to exercise the many coercive tools available to it. By the same token, a Congress that is internally divided or uncertain about its institutional powers, or unwilling to grind it out until the documents are delivered, will lose out in the quest for information. Moreover, both branches are at the mercy of political developments that can come around the corner without warning and tilt the advantage decisively to one side.
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Cuba: Legal Implications of Casto's Resignation

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
On February 19, 2008, official Cuban Communist Party newspaper Granma published a message from Fidel Castro in which he announced that, due to his poor health, he could no longer serve as President of Cuba. After Castro resigned, the National Assembly of People's Power (Cuba's legislative body) convened in order to elect a new president.
Categories: Research & Litigation

Children's Rights: France

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
France is a signatory to all the significant treaties dealing with children rights. It has in place several mechanisms to monitor the implementation of the 1989 Convention on the Rights of the Child, in particular, an ombudsman for children.

Pregnant women are entitled to paid maternity leave. To offset the loss of salary, they receive benefits via the public maternity insurance, often supplemented by a complementary sum payable by the employer as per a collective bargaining agreement. Several categories of family allowances are provided without any condition of employment.

Children under six receive free and mandatory preventive health services in a widespread network of thousands of health-care facilities. After the age of six, children's health is monitored by school health services. Mandatory physical and psychological checkups take place when the children are ages six, nine, twelve, and fifteen. When they are of sufficient maturity, children must be informed of their medical treatment and participate in the decision- making process.

School is mandatory from ages six to sixteen. Although not compulsory, pre-school for children under six is widely available and strongly encouraged. Children with special educational needs are educated in mainstream classes alongside their peers wherever possible, to better incorporate them into society.

There is no specific legal age under which a juvenile cannot be prosecuted. The sole criterion is that of moral discernment. Penalties, however, are adapted to the age of the child.

The Children's Rights: France report contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sale and trafficking of children, juvenile justice, and concluding remarks.
Categories: Research & Litigation

Children's Rights: China

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
China has ratified major international documents with regard to children's rights protection. China's domestic legislation also provides protection for a wide range of children's rights. The reality, however, is disputable. Few accurate statistics could be obtained directly from the official source. In practice, enforcement of the treaty obligations and the legislative declarations remains a huge problem.

The Children's Rights: China report contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sale and trafficking of children, and juvenile justice.
Categories: Research & Litigation

How to Do Russian Legal Research

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Law Library of Congress has prepared a Legal Research Guide for Russia. The Russian Guide includes an introduction to the legal system, official sources of law, print resources, and web resources.
Categories: Research & Litigation

Children's Rights: Canada

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
Canada has ratified the Convention on the Rights of the Child and one of the two optional protocol to it while signing the other. Responsibility for implementation is split between the federal government and the provinces. Canada's ten provinces have nearly universal health insurance plans that cover virtually all children and maintain most social welfare agencies. Another provincial responsibility is education. Children receive tax-supported elementary and secondary education. Universities charge subsidized tuition. Minimum ages for employment are yet another provincial responsibility. On the federal level, there are many criminal laws designed to prevent child abuse. The number of related offenses and the maximum punishments for them have been greatly increased in recent years. In its national defense laws, the federal government now prohibits Canadian soldiers under the age of eighteen from being deployed in armed conflict. The federal government also created a new juvenile justice system in 2002 that gives the police and judges more options in handling cases of juveniles charged with criminal offenses than the previous law.

The Children's Rights: Canada report contains information on: the implementation of International Rights of the Child, child health and social welfare, education, child labor and exploitation, sex and trafficking of children, juvenile justice, and concluding remarks.
Categories: Research & Litigation

Guide to Law Online

Law Library of Congress: Research Reports - Fri, 10/10/2014 - 10:00am
The Guide to Law Online by the Law Library of Congress is a vast network of links to content-based Web sites of primary and secondary legal and legislative information services from 143 nationals and all U.S. federal, state and territorial government entities.
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