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So What Are Your Top 5 Worst Treaties Ever?

by Duncan Hollis

Benjamin Soloway at Foreign Policy magazine thrilled me last week when he called to set up an interview for this story on the worst treaties ever.  Simply put, I love treaties and I love lists.  After all, a few years back I started a discussion on the most important treaties ever.  But, having given a lot of thought to my top 5, I was surprised to have never done a list of my bottom five.  So, I spent an entire day before talking to Ben, pestering my family (who do not necessarily share my enthusiasm for all things treaty-related) with various candidates based on different ways of defining “worst” (worst treaty for humanity? the parties? one party in particular? for third parties? for the agreement’s stated goals?).  In the end, I’m glad to see all the treaties that I mentioned got onto his list. Some, sadly, didn’t make the cut –I’d wanted the Universal Rubber Agreement included because it’s a rare example of a treaty that so failed to perform its intended functions (stabilizing rubber as a commodity) that the parties went through the trouble of terminating it in lieu of just letting it fall into desuetude.

Interested readers should definitely read Ben’s article.  But I thought I’d open the comments section here to allow Opinio Juris readers to sound off on whether they agree with his list, or to offer their own suggestions.  What treaties would you add (or delete) if we’re talking about the worst treaties of all time?

Members of UN Security Council Discuss LGBT Issues

by Kristen Boon

13 of the 15 members of the UN Security Council met yesterday to address LGBT issues for the first time in a closed session chaired by Chile and the US.     The focus was on persecution of gays in Syria and Iraq.    As an Arria-formula meeting, the discussion was confidential, however news reports after indicate the group discussed the Islamic State’s targeting of LGBTQ residents of Iraq and Syria.   Samantha Power, US Ambassador to the UN, told the diplomats that “we are coming together as a Security Council to condemn these acts, to demand they stop, and to commit to one day bringing the perpetrators to justice. That unified condemnation matters.”

See the news reports here, here and here for more details.

Goodbye to Torture at the APA

by Jens David Ohlin

Today, the American Psychological Association formally voted to end their enrollment in national security interrogations. This would seem to finally put an end to the organization’s involvement in post-9/11 torture against security detainees.

The vote comes on the heels of the Hoffman Report, which was prepared by attorney David Hoffman of Sidley Austin LLP.  Hoffman was hired by the APA to perform an internal investigation of the organization’s role in post-9/11 security interrogations that involved torture. The results of the report were damning. It was already common knowledge that psychologists were deeply involved in overseeing the interrogations that used torture, and that a few psychologists received millions of dollars from the CIA for their work. But the Hoffman Report conclusively established that key figures within the APA worked closely with administration officials (indeed colluded with them) to ensure that the organization’s ethical guidelines continued to permit the involvement of psychologists.

After the Report’s release, it was a little bit unclear what action the organization would take. Since much of the APA’s leadership was involved in the mess, reformers within the organization were seeking the removal or resignation of several officers. Some of those resignations happened in July.

Today comes the second part of the reform: a decision by the organization to ban its members from participation in all national security interrogations, whether or not they involve torture. Here is an excerpt from the resolution which passed overwhelmingly:

BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,”4 psychologists shall not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations5 for any military or intelligence entities, including private contractors working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation6. This prohibition does not apply to domestic law enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.

Fn4 Ethical Principles of Psychologists and Code of Conduct. (2002, as amended in 2010), American Psychologist, 57, 12, p. 3.

Fn5 For the purposes of this policy statement, “national security interrogations” refer to the interrogation of any detainee in the custody of any agency or subsidiary agency that reports to the Director of National Intelligence, the Secretary of Defense, the Director of Homeland Security, or the National Security Council, including joint elements such as the High-Value Detainee Interrogation Group. This also includes any operations by those agencies with any allied governments or non-state actors, including private contractors. This does not include those detainees held under domestic law enforcement where Miranda Rights and the U.S. Constitution apply.

Fn6 Psychologists may provide consultation with regard to policy pertaining to information gathering methods which are humane so long as they do not violate the prohibitions of this Resolution and are not related to any specific national security interrogation or detention conditions.

Interestingly, the ban does not apply to domestic law enforcement interrogations.

Revisiting Warafi

by Deborah Pearlstein

As others have already noted, D.C. District Court Judge Royce Lamberth held last week that because “fighting continues” between U.S., Taliban and Al Qaeda forces in Afghanistan, Taliban prisoners held at Guantanamo may still be detained under the domestic statute (AUMF) authorizing their detention. I’ve written here and elsewhere about the propriety of the underlying legal theory in the case so will try not to rehash those points here. But in addition to noting what I think the court got wrong in its analysis, I want to highlight the serious significance of what it got right.

What the court got wrong. Having rejected both parties’ erroneous position (more on which below) that the President’s view is determinative of whether or not a conflict sufficient to justify detention continues, the court then spends little more than a paragraph explaining why the AUMF should be understood to authorize the detention of prisoners captured by the United States in Afghanistan as long as any “fighting continue[s].” What should the court have said? One reasonable approach would have been as follows. First, that Congress, the Supreme Court (Hamdi), and the President have all recognized that the meaning of the AUMF is informed and controlled by the international law of armed conflict. Second, that the Supreme Court relied on the law of international armed conflict (GCIII, Art. 118) in interpreting the scope of the AUMF’s detention authority; and whether or not the Supreme Court was right in identifying Art. 118 as the relevant international law, the district court was bound by its judgment in that regard. Third, that Art. 118 requires that prisoners “shall be released and repatriated without delay after the cessation of active hostilities.” Fourth, that while there is some uncertainty what counts as “active hostilities” in an international armed conflict sense, it is inconsistent with the manifest purpose of Article 118 (made clear in Geneva Commentary to hasten the return of war prisoners given the hardship to all involved) to construe this provision as requiring conditions of zero violence before the repatriation obligation is triggered. Fifth, the continuation of “active hostilities” under Article 118 cannot be established merely by introducing official statements of the existence of hostilities, the presence of U.S. troops in country (which describes the relationship of the United States to dozens of countries around the world), the maintenance of a right of self-defense if attacked (which exists whether or not any hostilities are ongoing), or acts of violence between actors in country other than the parties to the armed conflict. What matters is evidence of actual, repeated, non-trivial incidents of violence between the parties to the conflict.

While I can imagine the court reaching the same result by this metric – i.e. that active hostilities in Afghanistan continue – and I can imagine other reasonable approaches to this analysis that reach varied conclusions (see here), the approach that Judge Lamberth took – ignoring international law altogether – is not one of them.

All that said, what the court got right here is, I think, a great deal more important. In a circuit notorious for embracing political question doctrine – the idea that certain questions of law are beyond the purview of the courts entirely – and contrary to the position taken by both the detainee and the government, the court was categorical in its determination that it is up to the court, not the President, to decide whether active hostilities exist. Citing Supreme Court decisions Hamdi and Boumediene in support, the court reasoned that “habeas rights that lived and died by the unexamined word of the political branches would be fatally flawed.” Rather, embracing the language of ordinary administrative law, what courts must look to is record evidence.

This case will be appealed. The facts on the ground in Afghanistan will continue to evolve. And it is now a great deal more likely than it was before Warafi was decided that a court will someday conclude as a matter of law that the authority to continue to hold some Guantanamo detainees has come to an end.

U.S. Prepared to Launch Possibly Illegal Airstrikes Against Assad (But That’s OK)

by Julian Ku

Yesterday, the Wall Street Journal reported that President Obama has authorized U.S. military forces to use air power to defend  U.S.-trained Syrian rebels if those rebels are attacked by the Syrian government forces.

President Barack Obama has authorized using air power to defend a new U.S.-backed fighting force in Syria if it is attacked by Syrian government forces or other groups, raising the risk of the American military coming into direct conflict with the regime of President Bashar al-Assad.

“For offensive operations, it’s ISIS only. But if attacked, we’ll defend them against anyone who’s attacking them,” said a senior military official. “We’re not looking to engage the regime, but we’ve made a commitment to help defend these people.”

I totally understand the reason for this policy. If the U.S. is going to train and support Syrian forces, and give them air support, it makes sense to provide air cover against all attacks.  But the legality of this policy under U.S. law requires reliance on the kind of pure presidentialism President Obama is supposedly against.  And its legality under international law is pretty tenuous as well.

Under U.S. law, the President is sort-of-authorized to attack ISIS under a very sketchy interpretation of the 2001 Authorization for the Use of Military Force. It is a very sketchy interpretation, but even that sketchy interpretation can’t justify air strikes on the Syrian government in Syrian territory and in defense of rebels involved in the Syrian civil war.  So the only legal theory that would support the U.S. position here is reliance on the President’s inherent powers under Article II of the Constitution without any claim of congressional authorization.  That’s all well and good, but it is another nail in the coffin for the congressionalist legal theory embraced by Candidate Obama in 2007.  Remember that? When Obama said the Constitution required the President to go to Congress unless the President needed to act against an imminent attack?  It seems so long ago.

Under international law, the Russians are already pointing out that using military force in a foreign country against that country’s recognized government is a violation of the U.N. Charter since there is no Security Council authorization here.  There isn’t even a clear “humanitarian intervention” theory here, at least not if the air strikes are only defensive.

And yet, I have little doubt that the U.S. will carry out the strikes if needed and that there will be almost no fuss in the U.S. about its constitutionality.  Article II is alive and well in the Obama era.  There may be little bit more fuss overseas about its legality under international law, since that seems a tough case to make. But it is hard to imagine that international law will act as much of constraint here either.

Recent International Legal Scholarship on the Crisis in Ukraine

by Chris Borgen

As the fighting in Ukraine continues into its second year, recent reports have variously focused on the promise of a weapons withdrawal and the risk that there is the opening of a new front opening. Recent international legal scholarship has attempted to frame the conflict within the context of international law and consider topics such as issues of legality and responsibility, the role of international law in conflict resolution, and what the conflict itself may show about the state of  international law and the international legal profession.  Following are two recent volumes and a set of videos covering a variety of such concerns:

The first is the current volume of the US Naval War College’s International Law Reports, which contains papers prepared for an October 2014 workshop organized by the West Point Center for the Rule of Law of the U.S. Military Academy and the Stockton Center for the Study of International Law of the U.S. Naval War College. These articles tend to focus on use of force and international humanitarian law related issues including Lieutenant Colonel Shane Reeves and Colonel David Wallace on the combatant status of “little green men,” Geoff Corn on regulating non-international armed conflicts after Tadic, and Opinio Juris’s Jens Ohlin on legitimate self-defense.

I was also one of the workshop participants and my paper, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea, considers how and why Russia has used international legal arguments concerning self-determination in relation to its intervention in Ukraine. I address the question “of what use is legal rhetoric in the midst of politico-military conflict” by reviewing the laws of self-determination and territorial integrity and considering Russia’s changing arguments concerning these concepts over the cases of Kosovo, South Ossetia, and Ukraine.

In March, the Centre for Polish-Russian Dialogue and Understanding and the Institute of Law Studies of the Polish Academy of Sciences hosted a conference in Warsaw that brought together international lawyers from Russia, Ukraine, across Europe. (I was one of two participants from the U.S.) Given the breadth of views, the discussion was lively. Videos of the presentations are now available online. Panel topics include self-determination and secession (1, 2), use of force issues (1, 2), reactions of the international community (1, 2), issues of recognition and non-recognition (1), and the international responsibility of states and individuals (1).

In the West, we don’t often hear the Russian analyses of the international legal issues in the Ukraine conflict, so I want to highlight contributions by Prof. Anatoly Y. Kapustin, Institute of Legislation and Comparative Law and President of the Russian International Law Association (starting at the 36th minute of the panel on reactions of the international community), Prof. Vladislav Tolstykh of Novosibirsk State University (starting at the 52nd minute of the self-determination panel), and Prof. Evgeniy Voronin of MGIMO University (starting in the 54th minute of the use of force panel).

By the way, my own talk on the self determination panel begins at the 27th minute.

Third, the new issue of the German Law Journal is devoted to a broad range of approaches to assessing the conflict. The opening section uses the perspective of public international law. The next section, as described in the introduction by issue editor Zoran Oklopcic:

upset[s] traditional approaches by interrogating the professional commitments of international lawyers, insisting on the legal and factual hybridity of the conflict, and exposing larger ideational frames and their socio-economic underpinnings that make the conflict in Ukraine legally legible in a particular way.

Following this are discussions steeped in constitutional law and theory and normative political theory. The closing section proposes broader reform agendas and reconsiderations of the roles of law and of international actors. Contributors include organizer Zoran Oklopcic on early-conflict constitution-making, Brad Roth on the rules of secession, self-determination and external intervention, Mikulas Fabry on how to uphold the territorial integrity of Ukraine, Boris Mamlyuk on the Ukraine crisis, Cold War II, and international law, Umut Ozsu on the political economy of self determination, and Jure Vidmar on the annexation of Crimea and the boundaries of the will of the people.

I invite readers to point to other examples of scholarship on the Ukraine crisis via the comments section (or an e-mail to me). I think we all hope that this will become a historical incident rather than continue as a current event.

The Latest American Digest on International Law is now Available

by Duncan Hollis

Just a quick note to flag that the Digest of United States Practice in International Law 2014 is now available. You can access it here.  And here’s the accompanying press release from the U.S. State Department:

The Department of State is pleased to announce the release of the 2014 Digest of United States Practice in International Law, covering developments during calendar year 2014. The Digest provides the public with a record of the views and practice of the Government of the United States in public and private international law. The official edition of the 2014 Digest is available exclusively on the State Department’s website at: www.state.gov/s/l/c8183.htm. Past Digests covering 1989 through 2013 are also available on the State Department’s website. The Digest is edited by the Office of the Legal Adviser.

The Digest traces its history back to an 1877 treatise by John Cadwalader, which was followed by multi-volume encyclopedias covering selected areas of international law. The Digest later came to be known to many as “Whiteman’s” after Marjorie Whiteman, the editor from 1963-1971. Beginning in 1973, the Office of the Legal Adviser published the Digest on an annual basis, changing its focus to documentation current to the year. Although publication was temporarily suspended after 1988, the office resumed publication in 2000 and has since produced volumes covering 1989 through 2013.

Those “Snap-Back” Sanctions in the Iran Deal Have a Pretty Big Loophole

by Julian Ku

I don’t have a profound take on the Iran Deal (full text here) announced today between Iran and the P-5+1 leading world powers. From my understanding of this agreement, I am doubtful it will work out to benefit the U.S. and the E.U., but I don’t feel particularly strongly on this point. There are more than enough commentators out there who have strong opinions on the merits, a few of whom are even worth reading!

Here at Opinio Juris, we have concentrated on the key legal aspects of the Iran Deal in previous posts.  As Duncan has explained, the Iran Deal is not a binding international agreement.  As I have noted, the Iran Review Act does not actually require Congress to vote in order to approve the deal, and it allows the President to veto any congressional vote of disapproval.  Additionally, I think a future president could withdraw from the Iran Deal without violating either international law or the Constitution. (It’s nonbinding under international law and it’s not a treaty nor an congressional-executive agreement for U.S. constitutional purposes).

In this post, I would like to focus on another interesting legal quirk. In order to sell the bill to Congress and the U.S. public, the Obama Administration has insisted on some provisions to re-impose sanctions if Iran is caught cheating.  In earlier discussions, the President has called for “snapback” provisions in the Iran Deal.  In other words, if Iran is caught cheating, the prior UN Security Council Resolutions would be “automatically” re-imposed without going back for a new vote of the Security Council.

I have been skeptical about how this would work, as a legal matter. But the Iran Deal does indeed contain language calling for something like a “snapback” sanction.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise….

I suppose it is theoretically possible for this mechanism to work, as long as the UN Security Council resolution lifting sanctions on Iran contains language incorporating this “snapback” process.  The Iran Deal, we should recall, is not a binding agreement and cannot bind the Security Council. I am not aware of similar instances where terminated UN Security Councils could be automatically revived upon a finding of non-compliance, but I am hardly an expert on this subject so I would welcome any readers who can offer some examples.

In any event, there is one more rather large loophole. Paragraph 37 goes on to insulate contracts with Iran that have already been made from whatever “snapback” sanctions that are imposed:

…In such event, these provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions.

Since there is likely to be a “gold rush” of business rushing to sign deals with Iran upon lifting of sanctions, this exception might prove a pretty big hole in the “snapped-back” sanctions.   The expected Chinese and Russian deals with Iran for arms sales and oil purchases could survive any snapback, even if Iran was caught cheating.

So even if “snapback” works legally, it would have pretty limited impact practically.Or am I missing something?

Make ASIL 2016 Great! Submit a Proposal

by Duncan Hollis

I am a huge fan of ASIL’s Annual Meeting for a whole host of reasons.  I like to see old friends, make new acquaintances, and spend inordinate amounts of time talking in the hallways.  The book sales on Saturday morning is a highlight of my year (no comment on what that may say about my life).  But what really holds the event together is it’s programming.  And while some of that programming comes from the Programming Committee leadership, many (if not most) of the panels have their origins in good ideas from members like you and me.  So, with that in mind, I thought I’d pass along the following item that I just received from Tillar House:

The Annual Meeting Committee of the American Society for International Law (ASIL) is currently accepting proposal submissions for its 110th Annual Meeting, held March 30 – April 2, 2016, in Washington, DC. This year’s meeting will be held under the theme “Charting New Frontiers in International Law.”
The Committee will prioritize session proposals that involve non-traditional formats, such as interviews, Q&A roundtables, lectures, poster sessions, or the use of multimedia or interactive audience participation features. In addition, the Committee is committed to expanding diversity in the issues and voices represented at the Annual Meeting, and is excited to present a track specifically focused on professional and academic development.

Submissions are due Monday, July 20th, 2015, and the Committee will notify proposers regarding the status of their submission via email in the fall of 2015. For instructions, more information on the Annual Meeting, and to submit a proposal, please visit http://asil.org/annualmeeting

I’m excited to see the call for new presentation formats and new voices.  So, please, if you have an interesting idea, please send it along to ASIL!  The Annual Meeting will be all the better for it.

UN Ombudsperson Kimberly Prost to Leave Post in July

by Kristen Boon

Kimberly Prost, the current UN Ombudsperson, will be leaving her post in mid-July when her term expires.   However, no replacement has been appointed, nor has the UN implemented a transition plan for her eventual successor.   The issue of what will happen to the current cases before the office, or to individuals who are unlucky enough to apply for delisting after July 14 is significant.   It highlights the fragility of this important institution at the UN, and suggests that not all member states wish it to function effectively.

Despite the considerable progress the UN has made in developing the institution of the Ombudsperson, which addresses review and delisting requests for individuals on the Al Qaida sanctions regime, it has become apparent that the institution may soon be synonymous with its first occupant: Ms. Prost.   The institution has not been streamlined into the UN system, and despite its important work, her status has been that of a consultant.  While some UN Member States initiated demarches to try to have her term extended, they were unsuccessful. It is unclear what the future will hold for the institution now that she is departing, which is significant rule of law problem.

The issue was extensively discussed at a recent conference on UN Sanctions at Leiden University in the Netherlands.   The program is available under the committee documents tab here.    In addition to the fragility of this institution, its exclusivity was discussed in detail.   The Ombudsperson’s Office has jurisdiction to review and delist individuals on the Al Qaida sanctions lists, but individuals and entities on the 15 other sanctions lists do not have access to this process. Instead, they may request a review from the Focal Point, which has a far less developed procedure and does not have the characteristics of an independent institution.   A number of countries have argued that the Ombudsperson’s jurisdiction should be extended to other regimes, although politically, it is clear that that if that happens, it would be the various sanctions regimes involving situations in Africa that would benefit, but not in the short or medium term, those involving WMD sanctions.  Information on the focal point is available here. A helpful overview of the differences between the Focal Point and Ombudsperson and links to other documents is available here.

Reading and Learning from Mike Lewis

by Jens David Ohlin

I met Mike Lewis during my first year of law teaching at Cornell Law School. Mike was scheduled to give a lecture at the law school about torture and I was invited to give a commentary on his presentation. Mike had pre-circulated the paper that the presentation was based on. I disagreed with his thesis and pressed him sharply on its details during the event. His thesis had the virtue of proposing a very workable standard for defining torture, but I felt it yielded counter-intuitive results for particular reasons that I articulated during the event. Afterwards, I was worried that I might have offended Mike, but it was not the case. Immediately after he got home, he wrote me a lovely note saying how much he appreciated our substantive exchange and was grateful that I taken the time and energy to respond to his scholarship. He was a true scholar and intellectual.

In the ensuing five years, I spent much time reading and learning from Mike’s other articles on IHL. This came at a crucial time for me as I was broadening my research agenda from exclusively ICL to include a wider range of IHL and law of war issues as well. I became heavily involved in debates about drones, targeted killings, targeting in general, and the relationship between IHL and human rights law. In all of these areas, I was heavily influenced by Mike’s explanations and positions that he articulated in his many law review articles. And I should hasten to add that on most of these crucial questions I was in agreement with Mike. Although I disagree with the Obama Administration’s legal positions on a few issues (definition of imminence, over-reliance on covert action and its consequences, use of the vague and indeterminate “associated forces” moniker, etc.), the general tenor of my scholarship has been to recognize that the deep architecture of IHL continues to be fundamentally Lieberian. I came to this view of IHL by reading a great many sources, but I would rank Mike’s articles near the top of that list. Simply put, I would not hold the views that I hold today if I had not been so richly educated by reading Mike’s work.

I spent some time with Mike at the ethics and law of war conference that Kevin Heller mentions in his remembrance. Mike was full of plans and we discussed the possibility of collaborating on future projects on the subject of the privilege of combatancy–a common interest for both of us. We hosted him at Cornell University last year as part of our university-wide Lund Critical debates series, where he debated Mary Ellen O’Connell on the use of drones. The video of the event can be found here; Mike’s presentation to the packed auditorium was both insightful and extremely clear. He had the ability to translate complex legal material to a wide audience, and Mary Ellen’s thoughtful critique on U.S. policies made for a lively debate between the two of them.

As I set about working on a new collected volume on remote warfare, I emailed him in October to commission a chapter from him; he enthusiastically responded in the affirmative. When just a few days ago I sent him a contributor agreement for him to sign on June 5, he informed me of his illness and said he could not definitively commit to the project anymore but was hopeful that he might still produce a chapter for it. Though he was still optimistic and making important plans for the future, I understood the nature of the diagnosis and prognosis because he gave me the name of his illness, but I labored under the illusion that we had more time. I was shocked when I learned that the end had come so quickly; I was unprepared for the news even though in the back of my mind I inferred the seriousness of the situation. I am devastated that we have been denied his voice for what should have been another 50 years. It highlights for me the fragility of life and our time on this earth and the ultimate unfairness by which some people are denied the privilege of a long life. But I take some comfort in knowing that he loved being a law professor and that we will be reading his work in the years and decades to come.

A Sad Farewell to Michael Lewis

by Kevin Jon Heller

As regular readers know, Mike and I often sparred on the virtual pages of Opinio Juris. By and large, we did so civilly. But on occasion — such as when we were debating whether the Bush admininstration’s “enhanced interrogation” regime qualified as torture — things became heated. I made him mad. He made me mad. I doubt either of us expected to like each other if we ever met in the brick-and-mortar world.

But like each other we did. Mike and I met only once, on the first day of a fascinating conference on ethics and the laws of war. We recognised each other from across the room as we were getting settled, and he quickly stomped toward me. I was a bit hesitant — but then Mike gave me a big hug and said how great it was to meet me and how much he had enjoyed our debates. It was a really wonderful moment.

It fills me with sadness to know there will be no such similar moments again. But I am very glad I had the opportunity to meet Mike — and I will remember our discussions, both virtual and real, for a long time.

Requiescat in pace, Mike.