Ben Priest NELC 650 Ali al-Sistani: the life of a marja’ Intro Question: What are the ways through which I can identify the most learned of Mujtahids? Answer : There are three ways of identifying a Mujtahid, and the A'alam: [1] when a person is certain that a particular person is a Mujtahid, or the most learned one. For this, he should be a learned person himself, and should possess the capacity to identify a Mujtahid or an A'alam; [2] when two persons, who are learned and just and possess the capacity to identify a Mujtahid or the A'alam, confirm that a person is a Mujtahid or an A'lam, provided that two other learned and just persons do not contradict them. In fact, being a Mujt ahid or an A'lam can also be established by a statement of only one trusted and reliable person; [3] when a number of learned persons who possess the capacity to identify a Mujtahid or an A'lam, certify that a particular person is a Mujtahid or an A'lam, provided that one is satisfied by their statement. (Sistani.org) Ali al-Sistani In treating the subject of any Shi‟ite leader, I think it‟s effective to view their life and efforts in two categories, one being their macro-political/historical role in Shi‟a politics, and the other being the details of their religious ministry in terms of fatawa and other publications. In this paper I have taken such an approach – the first segment being the life and times of Ali al-Sistani, and the second being a more detailed look at some of the printed material that he has released for the use of all who consider him to be a marja’ taqlid. The final section is a look into potential successors to his position in Najaf and Shi‟a politics. Origins Ali al-Husseini al-Sistani was born on August 4, 1930 in the shrine city of Mashhad in Iran. He was raised in a religious family, his father being Sayyid (a descendant of the prophet) Muhammad Baqir and his grandfather Sayyid Ali, who was a sheikh al-islam (CBC News Online 2004) from the Iranian Sistan province, hence the Sistani in al-Sistani‟s name. The inclusion of the Arabic prefix „al-„ was added after he moved to Najaf in his early twenties. He started his Qur‟anic studies at the age of five, a practice he was to continue for the rest of his life. In 1951 he left Mashhad to continue his studies in the city of Qom. While Mashhad is religiously important as a shrine city, for those studying to become a cleric there are only two real options for doing so – Qom and Najaf. Ali al-Sistani remained in Qom for a year, after which he relocated to Najaf and continued his studies. He was fortunate enough to be in the orbits of two of the greatest Shi‟ite leaders of the 20th century: Abu al-Qasim al-Khoi (or Abol Qassem Khoi) and Ruhollah Mostafavi Musavi Khomeini. From al-Khoi, an Azeri of Iranian origin, he received a permit certifying him as a mujtahid in 1960, which was seconded in the same year by a cleric named Shaykh Hilli. As he continued his studies and teaching, he was groomed by Khoi to become his successor and eventually led the prayer at Khoi‟s al- Khadra mosque from 1987 until 1993, when the mosque was closed. Shortly before Khoi‟s passing he married his grandson to Sistani‟s granddaughter, which effectively formalized their relationship and further qualifying him for the marja’iyya. In addition to being well versed in Shi‟a jurisprudence, Sistani was educated in hadith, philosophy, the study of usul al-fiqh (Shi‟ite roots of religion), and history. Sistani and the Iranian Revolution: vilayet-e faqih Ruhollah Khomeini gave a lecture series in Najaf, which was published as a book entitled Islamic Government (hukoumat-e islami) in 1971. Khomeini set forth the idea that Allah did not intend Islam to be a passive force but actually implemented in the government to the extent that Islam was the government. Such a government would be led by a vanguard trained in understanding and implementing Islamic law, which of course meant the ulama. Among the Shi‟ite clergy who took issue with this model was the Grand Ayatollah Khoi. After the revolution took place and Khomeini assumed power, Khoi denounced Khomeini‟s theories as deviations from Shi‟ism. However, within Iran open resistance to the Supreme Leader by any portion of society had consequences, even for the ulema, and it was not long before examples were made of Iranian clergyman and the opposition learned its place. Khomeini was an interesting mix of populism, Islamic-Marxism, mysticism, and theological authoritarianism. He and those who fell within his circle saw the traditional quietism that defined Shi‟a theology from the Safavid period up to that point as being inconsistent with the true nature of Islam and the legacy left by Ali and Hussein. The narrative of their forefathers‟ struggle was blended into the leftist, revolutionary ideals of the time, although its implementation was similar to third world authoritarian regimes the world over, save with mullahs and turbans instead of military uniforms or well pressed suits. While the supreme leader himself had no predisposition for organizing a country or managing an economy, he took very well to the influence it afforded him. During the Iran-Iraq war, one of Khomeini‟s former students approached him about ending the war on the grounds that it was wrong for Muslims to kill Muslims and that the deaths were meaningless. The Grand Ayatollah responded “Do you also criticize God when he sends an earthquake?” For these and many other reasons, Khoi was in opposition to the vilayet- e faqih in Iran. Both Khomeini and Khoi were more or less the primary figureheads for their time, and those who studied under them or followed after have fallen into the camps of one ayatollah or the other. Sistani inherited much of Khoi‟s reputation both in Najaf and abroad. To place this in proper scope, these opposing viewpoints have measurable influence in Pakistan, western India, Bahrain, Lebanon, and of course in each other‟s respective countries. When Khomeini was given the title of “Imam,” Shi‟ites favoring Khoi started referring to him with the same title, which essentially stated that Khomeini‟s claim to being the true spiritual descendant of the Shi‟ite Imams was not uncontested. In language less vitriolic than his predecessor, Sistani held that the vilayet-e faqih was a uniquely Iranian model and that it did not apply to Shi‟ites in neighboring areas (Aghsan and Jakobsen 2010). Although this was a product of his tutelage under Khoi, it was also one of the reasons for his survival under Saddam‟s regime. The context in which Shi‟ites lived in Saddam‟s Iraq during the 70‟sand 80‟s was influenced greatly by its past and their ruler‟s fears of the present and future. From the time of Ottoman domination to the creation of the actual state, Iraq has been a nation dominated politically by Sunnis and demographically by Shi‟ites. The major religion is Islam, which is divided into roughly 35% Sunni and 65% Shi‟a, with the prevailing ethnicity being Arab and the remainder divided between Kurds, Assyrians, Turkmen, and Iranians. This ethnic hodgepodge has resulted in sporadic civil unrest and each authoritarian Sunni-Arab regime after the other has treated minorities and Shi‟ites as a threat. Saddam‟s regime was flexible insofar as it put on the appropriate mask, giving to the Iraqi Shi‟a on one hand and taking away from them with the other as predicated by necessity. The Ba‟athist regime was living in a shadow of fear as the events of the Iranian Revolution took place. Similar to Ali al-Sistani, most Shi‟ite clerics within Iraq had some degree of connection to Iran via lineage or tutelage. During the Iraqi central government‟s wars with the Kurdish population, the Shah supported the Iraqi Kurds in the initial years of their struggle and later offered Saddam a cessation of support in return for redrawing the national boundaries. These experiences, in combination with the memory of many previous instances in which Iran has pressured Iraq using similar techniques, embittered Saddam greatly towards Iran. That Shi‟ites were a frequently suppressed minority with strong social and religious ties to his neighboring foe was the wellspring for various purges of Shi‟a within Iraq. On April 9, 1980, Saddam had Mohammad Baqer al-Sadr, a prominent Shi‟ite cleric that helped found Iraq‟s Dawa Party, executed. At the same time, tens of thousands of Shi‟ites were exiled from Iraq, which exodus added to what was already a large number of Iraqi Shi‟ite ex-patriots courtesy of the Ba‟athist regime (Nasr 2006). While it was clear that any mullah or citizen that openly sympathized with the Iranian Revolution had no place in Iraq, the central government allocated extra money towards Shi‟a regions and neighborhoods in order to avert a full-scale Shi‟a rebellion. In due course, the war ended with many Arab-Shi‟ites having died at the hands of Persian-Shi‟ites and visa-versa. All movements towards revolution in Iraq were violently suppressed by the Ba‟athists, and many popular clerics that posed a threat to the regime were also killed just as the regimes in both Tehran and Baghdad were actively working to garner support for their candidates for the office. In a sad irony, Saddam‟s initial candidate of choice of Mohammad Sadeq al-Sadr, who distanced himself from the regime as his popularity increased which in turn led to Saddam orchestrating his demise in 1998 (Corboz 2009). Sistani was arrested during the post-Gulf War intifada in which ulema were rounded up but unlike many of his incarcerated brethren, he was released shortly thereafter. It is highly likely that this was a done for the purpose of swaying the marja’iyya into a more favorable light with the regime (Walbridge 2000). Grand Ayatollah al-Khoi died of old age on August 8, 1992, leaving his legacy and his followers in the care of Sistani. In addition to being one of the few members of the ulema to receive an endorsement from his famous teacher, he was also selected by his peers to be in charge of the hawza in Najaf (Otterman 2004). However, this process was far from immediate, as this did not take place until more than a year later. There were other names in contention for the spot, among which were members of Khoi‟s family and charitable foundation, members of the Hakim family, and any of the other five individuals that helped prepare Khoi‟s body for burial (in which service Sistani participated). Some clerics all but openly announced their candidacy for the position, such as Mohammad Hussein Fadlallah, born in Najaf but based in Beirut. The most widely accepted ayatollah besides Kho‟i was Gulpaygani, who died on December 9, 1993. Not long thereafter, local (particularly the Khoi Foundation) and international support from various Shi‟a organizations helped Sistani ultimately take the position. From that time until March 2003, he made a quiet but steady influence throughout the Shi‟a community as he continued his work as a marja’ taqlid. The Fall of Saddam The changing role of the Grand Ayatollah Ali al-Sistani after the fall of Saddam Hussein‟s regime is in many ways a reflection of the major shift in the role of a large portion of Shi‟ites in Iraq, with the other portion being represented in the Sadrist trend and other militant Shi‟ite movements. Sistani‟s quietism should not be mistaken for sympathy or support for Saddam, and he maintained the few political views he did express in those years under Ba‟athist rule after the U.S. invasion. Even with the potential that Iraq had for becoming a religious Shi‟a state, he maintained the need for a separation between Shi‟a religious structure and that of the state. His firm convictions and large following were enough to make all political actions thereafter a matter of importance to both the U.S. administration as well as local Iraqis. The formation of the first elections was shaped in a large part by Sistani‟s influence and the massive amount of local support he received from Baghdad to Basra. However, Sistani‟s religious and political importance was not enough to insulate him from the wave of anger that was released from the Sadrist trend. Mob violence came in his direction in the spring of 2003, during which time the late Imam al-Khoi‟s son Abd al-Majid al-Khoi was in Najaf trying to garner support from the disparate Shi‟a forces in the city. Khoi had mistakenly decided to work with Saddam‟s Shi‟a appointee over the Imam Ali shine in order to bring himself political relevance in Najaf. On April 14, the two were in his offices when an armed mob attacked. The Ba‟athist appointee, Haider al- Rufaii, was cut to pieces and Khoi was killed shortly thereafter (Allawi 2007). This same mob tried to move against Sistani and force him and another member of the hawza in Najaf named Mohammad Said al-Hakim out of the country on the grounds of their Iranian origin. These and many other attacks in 2003 against Sistani supporters have been attributed to the Sadrists though for political reasons pursuing legal recourse for these actions is not tenable. The validity of the Sadrist claims against Sistani is debatable. Xenophobia against Iranian influence in Iraq was a very real phenomenon, though it was certainly more prevalent in the Sunni masses as opposed to the Shi‟a. That Ali al-Sistani had been so much a part of Iraqi Shi‟a society through all of the years of Ba‟athism and the wars with both Iran and the U.S. counted strongly in his favor. The relationship between Muqtada al-Sadr and Iran has been a more perplexing mix shaped by necessity, and even in the early years of the war the claim against Sistani for being a tool of Iran held very little substance (especially in light of Sadr‟s extensive time in Iran in the years following). Muqtada al-Sadr‟s struggle against Sistani had less to do with his being Iranian and more to do with patronage. Unlike his famous father, Muqtada was not renowned for his extensive religious background, but for the mix of social and political energy which he was able to direct after the fall of Saddam. This new power vacuum was fundamentally different from the relatively passive succession of one marja‟ by another, and Sadr was able to harness the messianic strain in Iraqi Shi‟a culture. His attempt to seize power not only in Najaf, but in the entire country as well was evidenced by his forming a de jure government in certain areas of the Shi‟a south that rivaled the CPA (Coalition Provisional Authority). Hegemony in the Iraqi Shi‟ism meant winning the struggle for primacy and control of key locations, specifically Najaf and Karbala. Controlling such places as the Imam Ali and Imam Hussein mosques meant access to the millions of Shi‟a pilgrims from all over the Middle East and central Asia and their offerings to the Mahdi. A deciding factor that shifted the political power undeniably in Sistani‟s favor took place in August 2004. Sadrist forces in Najaf had been battling with the MNF-I (Multinational Force-Iraq) and had retreated into the Imam Ali mosque. Right before the first fighting broke out, the Ayatollah had been flown to London for treatment for a heart condition. By the time he returned, all of the IGC‟s efforts to negotiate with Sadr‟s forces had failed miserably, and the tension was only increasing despite the fact that each side had more to lose than to gain by holding out. The solution started by means of Sistani‟s proxies as he was on his recovery bed in London and finally by Sistani himself as he flew from London to Basra and to Najaf shortly thereafter accompanied by thousands of pilgrims. During the ensuing meeting between Sistani and Sadr, the real chain of command was indelibly confirmed as Sistani forged a way for the Sadrists to disarm without losing face and Muqtada al-Sadr himself publicly deferring to the decision of the marja’iyya, specifically Sistani, and his instructions. In a high stakes game between the U.S., the IGC, and Muqtada al-Sadr, it was Ali al-Sistani that left with all of the winnings. Technically speaking, Ali al-Sistani is the most influential Iranian in this new generation of Iraqi politics. With the gag removed from the mouths of the Shi‟a clerical institution, the formation of the new Iraqi government was an opportunity not to be missed. When the U.S. led Coalition Provisional Authority (CPA) proposed that the Iraqi constitution be written by an unelected group of experts, Sistani responded by issuing a fatwa rejecting this proposition. In stark contrast to his political role during the rule of Saddam, Sistani made his presence visible in the political arena and was not afraid of issuing statements that contradicted the express desires of the IGC (Iraqi Governing Council) and U.S. occupying forces. Sistani was a major factor in mobilizing mass numbers of Iraqi Shi‟ites to participate in forming the new democratically elected government and constitution. While he has worked very hard to insure Shi‟a inclusion in the new government, it is interesting to note that at no point was al-Sistani a proponent of pushing Iraq towards an Iranian vilayet-e faqih model, regardless of the fact that this would ensure the placement of Shi‟ites in an acutely dominant position. At the time of the first elections on January 30, 2005, Sistani had lent his endorsement of the Dawa Party. The high level of Shi‟a involvement combined with the Sunni boycott made for a landslide victory for Shi‟a representation in the Transitional National Assembly. Beyond the new parliament and the later formed constitution, the new political landscape of Iraq was best represented by the unrestrained droves of pilgrims in ashoura commemorations numbering in the millions, and much of this was due to Ali al-Sistani. Ali al-Sistani – the mujtahid In his approach to ijtihad, Sistani‟s familiarity of both history and philosophy serve him well. Amidst his years of teaching he has conducted research on the histories that accompany usul and those that have contributed to the perpetuation of Shi‟ite jurisprudence. To practicing Shi‟ites, the legislative value of ta’aadul and taraajeeh (which is essentially determining the merits and strengths of ijtihad as interpreted over the centuries) is a good portion of what makes a mujtahid so important. Sistani is very much a modernist in his approach to philosophy, which in addition to his technical credentials aids his popularity with respect to many mainstream Shi‟ites in the region. This approach is quite representative of the great divergence between the jurisprudence of Shi‟ites and Sunnis, especially the more literalist Wahhabis and Salafis which have made real pushes to be broadcasted in recent years. In the interpretation of scriptural texts and historical precedent, he seems to follow the „spirit of the law.‟ The research end of his role as a marja‟ has helped him gain a more comprehensive perspective on the background and contributing factors that led to these laws and statements creation. The relative strictness with which some clerics and religious leaders (both Shi‟a and Sunni) does not seem to attach to a leader that supports the text “anything which Allah has prohibited is lawful for whoever is driven to necessity.” His extensive background in the biographies of the authors of important religious literature is further evidence of both his value as a marja’ taqlid and as a modernist. This familiarity is no small task, since the basis of this literary field spans conventional literature, poetry, orations, commentary on the Qur‟an, and of course the Qur‟an itself. Each of these fields are in and of themselves microcosms – the language used (usually Arabic or Persian), the grammar, the historical context surrounding their creation, etc., all stratified to the extent that functional familiarity in their usage represents a significant time investment and a very capable mind. In the context of religious rulings, some critical works that are either highly regarded or entirely disregarded among most Muslim scholars are rejected or accepted by Sistani. Many of these are definitive stances on taqalid respecting dietary and behavioral restrictions that are disputed in the Muslim community. One such example is a hadith coming from the battle of Khaybar. In 628 the Prophet Mohammad was living in Medina (Lowin 2012). At this time, Medina was situated between Mecca and Khaybar, two cities with a population that would benefit economically were the Muslims removed from the equation. In a preemptive strike the Muslims attacked and seized the city and all of its accompanying natural resources. While Mohammad‟s forces were certainly powerful enough to take this city from the Khaybari Jews that possessed it, they had not yet reached sufficiently critical mass as to make them an indomitable force. During this battle, the Prophet Mohammad prohibited the consumption of domestic donkey meat. The more literalist approach to issues like this is to say that the statement should be taken at face value and donkey meat should never be consumed. From Sistani‟s perspective, Mohammad was teaching the Muslims to be conservative and mindful with their resources. Domesticated donkeys were useful for bearing heavy loads, such as weapons and other supplies, over long distances. During the battle of Khaybar, eating these animals would have been a waste and created more problems than it solved. Given that there are fewer restrictions on consuming the meat of wild donkeys, this ruling makes more sense in the big picture. Bringing up the example of donkey meat may seem somewhat frivolous, but the effect of religion in life can be categorized in the same way that I‟ve tried to organize this paper – the macro-effect that is periodically felt by millions which sum is recorded by historians after the fact, and the day-to-day effect that comes with being an active adherent to the religion. When I was living in Egypt in the summer of 2010, I read a newspaper article with a very real application of how these kinds of decisions are applied in the every day life of a Muslim. During that summer there had been issues with the meat that Egypt had imported from neighboring countries, and as a result the price of meat was spiking. Some unscrupulous butchers in Cairo decided that they would slip in some non-hilaal meat to boost their inventory, and the chief offenders were using dog and donkey meat. The prevailing religious ruling in the area led to a significant legal issue for the meat dealers and a morality issue for those customers duped into believing what they were eating was cow, goat, or camel. Sistani‟s flexible approach to ijtihad and his approach to political involvement of the Shi‟a religious establishment have defined many expectations for what a marj’a in the 21st century should be. The massive increase in communications with the internet have made reaching Shi‟a communities throughout the world a significantly easier task, and the issuance of a fatwa or the publication and distribution of a religious manuscript is much easier with this kind of near-universal access. This trend puts an increasing need for all future marj’a to be both involved intimately at home while also keeping up a large following abroad. For religious legitimacy, a fluid knowledge of biographies and histories will continue to be essential, and for this purpose Najaf and Qom will it seems unlikely that Najaf and Qom will lose their status as the two powerhouses of religious authority any time in the foreseeable future. However, with the growth of Shi‟a communities outside of the traditional Middle East, I suspect that the number of non- traditional nominations for the marja’iyya will continue to increase. Succession At present Ayatollah Ali al-Sistani is stricken with the physical inhibitions that accompany the human condition and its gradual deterioration, and as a result, he does not venture out of his home in Najaf and only occasionally admits visitors. It would appear that his major roles have been carried out, but his legacy is reflected in the way Iraq has been shaped and in the lives of those that follow him. It is quite clear that Ali al-Sistani has been a formidable reserve of soft power in a time where hard power had a significant draw and left the most easily discernable mark. He successfully filled the shoes of Khoi and has in turn left his own mark on Shi‟ism. When the day comes where the world no longer has the Grand Ayatollah Ali al-Sistani, it will be a difficult task for the next marja‟ to reach the measure of his predecessors. The battle for succession will be much akin to that accompanying Sistani‟s nomination for the marja’iyya, and there are many parties that are already working to promote candidates that support their cause. At present, Tehran is doing its best to put forward the Grand Ayatollah Mahmoud Hashemi Shahroudi. He was born in Najaf of Iranian parentage in 1948, and lived and operated out of Najaf until 1979 when he took refuge in Iran. He is purported to have taught Hassan Nasrallah (the head of Hezbollah) and a few important Iraqi parliamentarians. Of the militias in Iraq, Shahroudi has supporters in the Badr Organization, Hezbollah Brigades, and Asaib Ahl al-Haq. In April of this year Nuri al-Malaki, Iraq‟s prime minister since 2006, met with Shahroudi in a visit to Tehran (Visser 2012). Given Malaki‟s connection with and dependence on Iran, this is not surprising, but it is also quite telling that this visit was not reported on his website that posted all other activities he was part during the trip. These connections serve him well as he maneuvers himself in the best way to replace Sistani. Shahroudi was a member of Iran‟s Guardian Council (Peterson 2012) from 1999 to 2009 and played a part in suppressing the reform movement. He is heavily supported by the Iranian regime, and while he himself has not openly expressed his seeking the title of marjaa‟ (which is to be expected), his supporters are making all of the necessary steps in that direction. He is setting up offices in Najaf, collecting khoms, arranging students to teach, and published a tawdih al-masail (another requisite for a marjaa‟) in 2011 (Associated Press 2012). Similar to other imams and mullahs, he has his own website where he fields questions and issues fatwas (hashemishahroudi.org). Thus far, Sistani has refused to meet with Shahroudi, which is a significant snub in the context of the nature of Sistani‟s succession of Khoi. However, the situation on the ground is also significantly different in Iraq and in Shi‟a political life in general than it was when Khoi‟s mantle settled on Sistani. No one individual embodies this change than Muqtada al-Sadr. For as much attention as Sadr has received in Iraqi and Shi‟a politics, he is still far too unqualified to become a member of the marja’iyya. His appeal is not the steady academic of Sistani so much as a virulent messianic trend that seeks to push Shi‟ites out of the minority position under which they have suffered for so long. He lost a significant amount of public support as his Mahdi Army helped perpetuate the worst of Iraq‟s violence from 2005- 2007. Also, however hard he has pressed against being directly involved with the Iraqi central government, members of the Sadrist Trend have been members of parliament since the very first election (albeit the first members ran as „independent‟ to maintain the guise of an electoral boycott). After years of unfulfilled promises from a government riddled by corruption and all of Iraq‟s major cities suffering from sectarian cleansing, the populace is jaded towards politicians and their accompanying militias. Sadr is a divisive character even in the Shi‟a community, and while there is no telling what the future will bring, there are two scenarios I can think of in which Muqtada al-Sadr gains the recognition of marja‟. The first involves the heir of Baqir al-Sadr‟s legacy making some serious distance between himself and sectarian politics as well as buckling down into the seminaries and husseinias to strengthen his roots. The second scenario is that the sectarian divide widens not only in Iraq but in other regions in which there are significant Shi‟a populations. Sistani‟s popularity in Pakistan, western India, Iran, Iraq, and other Arab countries requires him to be expanded beyond exclusivity to national politics. At the same time he is also an indispensable part of the Iraqi political scene and in sharp contrast to many other politicians and clerics he actively pursues a message of sectarian unity. In a recent statement he clarified that “differences between Shia and Sunnis are in Fiqh issues, which also exist between the people of the same sect… We do not distinguish Arabs and Kurds. Islam is what unites us… We [Sunni and Shi‟a] are united towards one Ka’ba, one Prayer and one Fasting,” (Shafaqna 2012). Sadr is, at best, still years away from reaching critical mass (Visser 2011). He simply lacks the religious credentials to be competitive as a knowledgeable member of the marja’iyya; only time, study, and maintaining credibility of the al-Sadr brand name will help him will get him what he wants in the twists and turns of modern Shi‟a politics. While Sistani-esque quietism stands in contrast to the increasingly overt politicization of the Shi‟ite masses which would put a large amount of support in the direction of Shahroudi (now) or al-Sadr (in the future), there are still many that support Sistani‟s quietism would not be quick to support a politically active and more polarizing candidate like Shahroudi. He has the religious background and has spent significant time in centers of Shi‟a learning but is tainted by his political past. A similar example can be found in Fadlallah of Lebanon with regard to the limitations that political activity can bring. Shahroudi is not equated with the corruption and irreligious nature Beirut (Walbridge 2000), but the political legacy has a degree of inherent divisiveness. Sistani‟s role as a moderator in the conflict in Iraq to his pragmatic approach to ijtihad are all part of what makes Sistani so palatable as a marja‟ and precludes so many others from gaining that distinction. 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