Balkinization  

Friday, January 07, 2005

Understanding the OLC Torture Memos (Part I)

Marty Lederman

[NOTE: This post is in four parts. For ease of reading, and in a departure from the usual blog practice, you can read the posts in order going down the page of the blog—just as in a magazine, or newspaper.]

Following up on Jack’s latest post, I highly recommend this recent column by Professor Michael Dorf of the Columbia Law School, concerning the two publicly released OLC Opinions construing the federal torture statute—the now-infamous August 1, 2002 Opinion and the superseding Opinion that OLC released last Thursday. Professor Dorf is correct that in issuing its new memo OLC has taken a critically important step toward restoring the Office's reputation for providing rigorous and impartial legal advice: I agree with Professor Dorf that the new memo’s author—Acting Assistant Attorney General Daniel Levin—and other OLC attorneys who undoubtedly contributed to the careful and difficult work on the memo, deserve considerable praise (and, from those of us who revere the Office, sincere thanks for respecting many of the Office’s best practices and traditions).

The discrete issue the new Opinion addresses is the meaning of “torture” under one, specific federal criminal statute—18 U.S.C. §§ 2340-2340A, which is often referred to as the federal torture statute. As I’ll discuss in a subsequent post, the most significant thing about both OLC opinions is what they don’t discuss: each is silent with respect to a host of other, more restrictive legal constraints that presumably would apply to government interrogations even where the extremely narrow definition of “torture” is not met.

But on the question that the memos do address—what the torture statute prohibits—the new OLC Opinion is in many respects a great improvement over the 2002 OLC Opinion. Former OLC Deputy Assistant Attorney General John Yoo—who helped draft the 2002 Opinion—was quoted the other day as saying that the new OLC Opinion "makes it harder to figure out how the torture statute applies to specific interrogation methods. It muddies the water. Our effort [in 2002] was to interpret the statute clearly." In an important sense, he is absolutely correct. Because the 2002 Opinion in effect defined torture out of existence (and further advised that even if some techniques were “torture,” they were subject to imagined "self-defense," "necessity," and "presidential approval" defenses)—it sent an unmistakable signal to the CIA that it was free to engage in extremely coercive forms of interrogation without fear of legal exposure. The new Opinion (correctly) concludes that the statute is more restrictive, and that some questions are too close or too abstract to be able to resolve categorically, or apart from teh context of particular cases. This is probably not the sort of unequivocally encouraging and immunizing advice that the CIA was hoping to receive.

Nevertheless, in an important footnote, the new Levin Opinion reassures the agency: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office's prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum." In other words, despite its admirable and considerable repudiation of the 2002 OLC Opinion, the new OLC Opinion in many important respects does not affect what the CIA has been authorized to do. (I’ll discuss this issue further in my remaining posts.)

Moreover, the definition of “torture” that the new Opinion adopts remains an extremely narrow one. This is largely not the result of the new OLC analysis, but is instead a function of the fact that the Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture ("CAT") as a condition of its ratification of that treaty, and the fact that Congress adopted those restrictive terms in the torture statute itself.

Even though the two Opinions therefore come out in roughly the same place, the differences between them are striking, and very important from a practical standpoint. These are among the more significant areas of contrast and repudiation:

1. Even apart from the “merits” of the conclusions in the two Opinions, there’s a world of difference between the two documents in terms of process, tone, methods of analysis and emphasis.

a. For example, from all that appears in the Opinion and in published accounts, in 2002 OLC did not consult the agencies with historical expertise in defining “torture” under federal law—in particular, the State Department. The Opinion is centrally concerned with a statute that implements a U.S. treaty obligation. Interpretations of that treaty, and of its implementing legislation, obviously can have profound effects on our international relations, on the way in which other nations construe the Convention when interrogating detainees (including American detainees) and prosecuting possible treaty violations, and on the development of international law. Therefore, traditionally OLC would solicit the views of the State Department before rendering any advice on an issue such as this, and would reject the State Department Legal Adviser’s views only after extremely careful consideration. In this case, it appears that OLC did not even consult the State Department—even though the State Department actually implements the CAT in connection with extradition cases, and has regulations that are used to implement the statutory definition of “torture.” See 22 C.F.R. 95.1. The 2002 Opinion does not so much as mention such regulations, or any State Department practice with respect to the CAT. (The Opinion is also silent on INS (now Department of Homeland Security) regulations used to implement “torture” provisions in the context of asylum applications.)

By contrast, the Wall Street Journal has reported that OLC sought input from various agencies, including the State Department, before it issued the new Levin Opinion. And the Opinion itself (page 2) reassures the reader that the Criminal Division of DOJ reviewed the document and concurs in its analysis (something that seems hard to imagine with respect to at least some portions of the 2002 Opinion, such as those recognizing defenses of necessity and self-defense).

b. The 2002 Opinion also failed to discuss many of the numerous court cases that have analyzed the meaning of “torture” under the CAT in the immigration context. That 2002 Opinion discussed only a single district court case—and then chose to accept only the aspects of the decision in that case that comported with the conclusions that OLC had already reached earlier in its opinion. An appendix to the Opinion listed several other cases discussing the meaning of “torture”—but, remarkably, the Opinion did not discuss those cases, let alone explain why it was departing from the conclusions reached in several of them.

By contrast, the new Opinion includes a much more careful, thorough and fair reading of the relevant case law defining “torture.” The new Opinion also actually addresses, carefully and respectfully, serious arguments on both sides of the various statutory questions. Where the statute is ambiguous, or where it is impossible in the abstract to resolve a difficult question—such as the meaning of the “specific intent” requirement of the statute—the new Opinion concedes as much, instead of construing the statute (as the 2002 Opinion did) in the most anti-prosecution light possible.

[The next few paragraphs are slightly revised.]

c. The 2002 Opinion construed the federal torture statute without providing virtually any legal or practical context for the question presented. The issue the Opinion attempted to answer was an abstract one concerning a particular, especially restrictive federal law. The opinion did not mention, let alone address, the numerous other sources of federal law that impose greater limitations on government interrogations (many of which I identify in Part III of this post). Therefore, it was likely to leave readers—including government actors making decisions about interrogation techniques—with the distinct impression that conduct not amounting to “torture” is lawful. (After all, if conduct that comes close to the “torture” line without going over is also unlawful, why bother to carefully identify precisely where that line falls? In Part II, I offer an answer to this question—namely, that the Administration apparently had concluded that certain CIA interrogations outside the United States are lawful, no matter how inhumane they may be, as long as they do not constitute statutory “torture.”)

The new Levin Opinion is likewise devoted solely to the federal torture statute. That new opinion, however, quite appropriately notes in footnote 6 that it "does not address the many other sources of law that may apply, depending on the circumstances, to the detention or interrogation of detainees (for example, the Geneva Conventions; the UCMJ; the Military Extraterritorial Jurisdiction Act; and the War Crimes Act, among others),” and it emphasizes that “[a]ny analysis of particular facts must, of course, ensure that the United States complies with all applicable legal obligations."

d. The 2002 Opinion was not made public until long after it was leaked and provoked a public outcry—even though the Opinion presumably served as the basis for the United States’s most far-reaching and troubling conduct in the treatment of detainees. There was no obvious reason for the secrecy; and as is now apparent, if OLC had disseminated the 2002 Opinion at the outset—at least throughout the government, if not to the public—the Office would have been made aware much earlier of the weaknesses and gaps in its analysis, and it would not have taken more than two years for the Office to make much-needed corrections.

OLC published its superseding Opinion, in contrast, the evening it was issued.

* * * *

These numerous departures from the traditional OLC practices and methods were not business as usual at OLC, even during the period in question. I happen to know first-hand (see disclosure below) that Assistant Attorney General Bybee and many of the wonderful and dedicated attorneys in the Office, on both sides of the political “aisle,” were producing fair-minded and rigorous Opinions fully consistent with the best traditions of the Office—even in cases where the Office was trying to push the legal envelope, or where its analysis was open to serious debate. In this light, it is hard to avoid the conclusion that the function of the 2002 Opinion on the torture statute was not to provide OLC’s typically balanced and thorough view of the applicable law, nor to give readers (e.g., the White House Counsel and the CIA) a fair and candid assessment of the many close and difficult questions associated with the various federal laws bearing on the issue. If those had been OLC’s objectives, presumably it would have consulted more widely with others in the Executive branch with expertise on the various questions; would have tested, and strengthened, its analysis by insisting upon careful and skeptical preliminary review by others within and outside OLC; would have dealt more forthrightly in the Opinion itself with counterarguments and with the array of relevant judicial precedents and executive understandings; and would have placed the torture statute within a broader legal context in which there are many potentially relevant federal restrictions. The fact that the Office did not do such things leaves the unmistakable impression that OLC saw its role in this particular instance as instead providing legal cover for conduct of questionable legality—i.e., that the function of the 2002 Opinion was to signal a sort of “green light” that might provide an immunity of sorts to government actors who would otherwise face serious legal exposure.

2. Turning to the "merits," the new Opinion offers a much more persuasive interpretation of the torture statute, and goes so far as to expressly repudiate numerous central conclusions of the 2002 Opinion—something that is extremely unusual for OLC to do, especially absent a change in Administrations. For example:

a. The 2002 Opinion concluded (p.3)—without citing any authority—that in order for a defendant to be culpable of torture, he or she would have to actually inflict severe physical or mental pain or suffering. The new Opinion (page 17 n.28) correctly notes that under the plain language of the statute, all that is required is that the defendant have specifically intended to inflict such pain or suffering.

b. The 2002 Opinion—relying upon the definition of “emergency medical condition” in a health-benefits statutes that have nothing to do with the torture statute—construed the phrase “severe physical . . . pain or suffering” in the torture statute to include only the pain associated with “permanent and serious physical damage” that “must rise to the level of death, organ failure, or the permanent impairment of a significant body function” (pp. 5-6), and suggested (p.19) that the pain must be “excruciating and agonizing.” The new Opinion repudiates these conclusions (pp. 2, 8 n.17), and rightly explains that the health-care statutes cited in the 2002 Opinion appear in a “very different context,” define a different statutory term, and do not provide a “proper guide” for interpreting the torture statute.

c. The 2002 Opinion concluded (p.6 n.3) that “severe physical suffering” could under no circumstances be distinct from “severe physical pain,” even though the statute refers to both. The new Opinion expressly rejects this conclusion (p.10), and contains a much more rigorous and nuanced discussion of the possible distinction (pp. 10-12).

d. The 2002 Opinion indicated (pp. 1, 7) that “prolonged mental harm” requires harm that lasts months or years, and that the mental strain suffered during a “lengthy and intense interrogation” would not suffice—a conclusion that is difficult to reconcile with the dictionary definitions the Opinion itself cites, which suggest that to “prolong” means simply to “extend the duration of, to draw out.” The new Opinion (p. 14 & n.24) repudiates the 2002 Opinion’s analysis regarding the meaning of “prolonged,” acknowledges that there is “little guidance to draw upon in interpreting this phrase,” and simply concludes that the mental damage “must extend for some period of time.” The new Opinion also acknowledges (p. 15) that suffering, years after the fact, from flashbacks, nightmares, anxiety and disruptions of sleep, can constitute prolonged mental harm.

e. The 2002 Opinion concluded (pp. 3-4) that the statutory requirement that the torturer “specifically intend” to inflict severe pain or suffering requires that the defendant have had the “precise objective” of inflicting severe pain, i.e., that it is not sufficient that the defendant knew his conduct would result in such severe pain, and that the defendant cannot be guilty of torture unless he acted “with the express purpose of inflicting severe pain or suffering.” The new Opinion declines to adopt these conclusions (pp. 16-17 n.27), and concludes instead (p. 16) that it is not useful for OLC to try to define the precise meaning of the term—i.e., to resolve the very difficult cases between the two extremes—in the absence of any judicial guidance on the question.

3. The unpersuasive interpretation of the meaning of “torture” was not the most egregious aspect of the 2002 Opinion. Having construed the definition down to almost nothing, that Opinion then went a huge extra step and spent nine pages constructing two novel statutory defenses to culpability—“necessity” and self-defense—and arguing that the statute should be construed to permit torture when the President authorizes it. The notion that the statute implicitly includes such defenses (and that it can be construed to recognize an approval-of-the-Commander-in-Chief exception) is extremely implausible, especially in light of the fact that recognizing such defenses would put the U.S. in flat violation of its treaty obligations. Nor did the 2002 Opinion attempt to reconcile its analysis with DOJ’s traditional views on the availability and scope of the relevant criminal-law defenses. The theory of “self-defense” in the Opinion actually had little to do with defense of “self”—which is understandable, because a torturer is rarely in imminent danger of being grievously injured by his detainee. Instead, OLC hypothesized a defense that would excuse torture committed on behalf of the nation’s defense, regardless of whether the threat derives from the person being tortured or whether the threat is imminent. And as to “necessity,” the Opinion failed even to cite the leading authority, the Supreme Court’s decision (issued just two-and-a-half months earlier) in United States v. Oakland Cannabis Buyers’ Co-op, in which the Court (in accord with the views of the Department of Justice) unanimously rejected a “necessity” defense in connection with the Controlled Substances Act, and in which six Justices suggested that necessity can never be a defense when the federal statute does not expressly provide for it. Most importantly, the 2002 Opinion entirely ignored the official position of the United States, articulated in the U.S.’s Report to the UN Committee Against Torture in 1999: “No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a 'state of public emergency') or on orders from a superior officer or public authority.” The 2002 Opinion flatly contradicts this official U.S. position—something the Department, and the White House Counsel, presumably would have known had they bothered to consult the State Department.

The contrasting perspective of the 2004 Levin Opinion is striking. The new Opinion simply states (p.17) unequivocally, and without adornment, that “[t]here is no exception under the statute permitting torture to be used for a ‘good reason.’”

4. Finally, and most notoriously, the 2002 Opinion also concluded that it would be unconstitutional for Congress to prohibit the President from authorizing torture—or, indeed, to interfere in any way with “the President’s conduct of the interrogation of enemy combatants” (p.39) (a proposition that would appear to suggest that the President could ignore the Uniform Code of Military Justice restrictions on detainee treatment, and the Geneva Conventions where they concededly apply). The 2002 Opinion did not even mention the seminal Supreme Court case speaking to the question of statutory limits on the Commander-in-Chief power (Youngstown Steel & Tube v. Sawyer); nor did the Opinion acknowledge that the Constitution gives Congress the powers to define and punish Offenses against the Law of Nations; to make Rules concerning Captures on Land and Water; and to make Rules for the Government and Regulation of the land and naval forces.

The new Levin Opinion eliminates the 2002 Commander-in-Chief analysis, but it does not repudiate it—an important fact that I will touch upon in my next post.

In light of the Levin Opinion’s extraordinary and thorough rebuke of the 2002 Opinion, it is probably fair to ask why the Attorney General and the White House Counsel (the official who requested and received the 2002 Opinion) did not in 2002 immediately send the OLC Opinion back to OLC so that the Office could address what OLC itself now identifies as its manifest and numerous flaws—and why the White House Counsel did not attempt to remedy OLC’s apparent failure to consult with other agencies with expertise on the question, particularly the State Department. (Far from questioning the Opinion or asking for it to be withdrawn, the White House apparently forwarded it to the Defense Department, where it was largely incorporated in the DoD Working Group Report in April 2003.)

[Full disclosure: I worked as an Attorney-Advisor at OLC from 1994-2002, and I was still at the Office when it issued the 2002 Torture Opinion. I did not know anything about that Opinion, however—not even of its existence—until it became the subject of public debate last summer, long after I had left OLC. Nothing in this post reflects any information, confidential or otherwise, to which I was privy while at OLC. I am also one of the 19 former OLC attorneys who has signed a recent memo setting forth proposed “Principles to Guide the Office of Legal Counsel.”]

Comments:

This is, by far, the best analysis of this issue to date. I look forward to your follow-up post.
 

Dear Marty,

Thanks for your excellent and thorough job on the New Improved Torture Memo. It's going to take the day for me to go through it.

Do you have the time to answer a few questions:

I do not understand why the CIA went to Gonzales for torture guidance. July 22, 2002 meeting with Bybee, Yoo, Addington, Gonzales and two other lawyers. Gonzales is quoted as asking were they forward-leaning enough, were the interrogation techniques tough enough. It seems to me right there that the CIA was requesting an Executive Order on detainee treatment: torture.

The part of the Bybee memo that has not been overwritten says: the commander in chief has a "constitutionally superior position" to Congress and an "inherent authority" to prosecute the war, even if it meant defying the will of Congress.

"What the administration is trying to do is create a new legal regime," said Deputy Assistant Attorney General John Yoo in 2002. Is the president outside the law, above the law and a law unto himself?

Maybe Geneva is in operation, but the Constitution has been rendered quaint and obsolete: "He shall take care that the laws be faithfully executed," the Constitution says of the president.

I thought it was Congress who set the laws about detainee treatment: The Constitution grants Congress specific powers to set the rules in war and peace, including for captives. "Congress shall have the power ... to declare war and make rules concerning captures on land and water ... to define offenses against the law of nations [and] to make rules for the government and regulation of the land and naval forces."

And about the hearings and the confirmation process: I understand that the committee members have until the 13th to submit their written questions. What happens next? When does the committee vote, when does it go to the Senate floor, and is week this not a very important window within to write a second barrage of letters to the Senate? Why is the media so passive in the last three days?
 

I have just one question. Did Congress actually declare a state of war against whatever you want to call the Iraqi insurgents/al-queda POW's or whatever we call them? And if Gitmo is for torturing al-Queda, what is Abu Ghraib for? Torturing Iraqi's?

If Congress didn't declare war on terrorists, just bushco repeating the phrase (tm) "war on Terror", then what the heck is bush doing?
 

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mesothelioma The symptoms of
mesothelioma include shortness of breath due to pleural effusion (fluid between the lung and the chest wall or chest wall pain, and general symptoms such as weight loss. The diagnosis may be suspected with chest X-ray and CT scan and is confirmed with a biopsy (tissue sample) and microscopic examination. A thoracoscopy inserting a tube with a camera into the chest) can be used to take biopsies. It allows the introduction of substances such as talc to obliterate the pleural space (called pleurodesis, which prevents more fluid from accumulating and pressing on the lung. Despite treatment with chemotherapy, radiation therapy or sometimes surgery, the disease carries a poor prognosis. Research about screening tests for the early detection of mesothelioma is ongoing.
Symptoms of mesothelioma may not appear until 20 to 50 years after exposure to asbestos. Shortness of breath, cough, and pain in the chest due to an accumulation of fluid in the pleural space are often symptoms of pleural
mesotheliomaSymptoms of peritoneal
mesothelioma include weight loss and cachexia, abdominal swelling and pain due to ascites (a buildup of fluid in the abdominal cavity). Other symptoms of peritoneal
mesothelioma may include bowel obstruction, blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions.
Mesothelioma that affects the pleura can cause these signs and symptoms:
chest wall pain
pleural effusion, or fluid surrounding the lung
shortness of breath
fatigue or anemia
wheezing, hoarseness, or cough
blood in the sputum (fluid) coughed up hemoptysis
In severe cases, the person may have many tumor masses. The individual may develop a pneumothorax, or collapse of the lung The disease may metastasize, or spread, to other parts of the body.
Tumors that affect the abdominal cavity often do not cause symptoms until they are at a late stage. Symptoms include:
abdominal pain
ascites, or an abnormal buildup of fluid in the abdomen
a mass in the abdomen
problems with bowel function
weight loss
In severe cases of the disease, the following signs and symptoms may be present:
blood clots in the veins, which may cause thrombophlebitis
disseminated intravascular coagulation a disorder causing severe bleeding in many body organs
jaundice, or yellowing of the eyes and skin
low blood sugar level
pleural effusion
pulmonary emboli, or blood clots in the arteries of the lungs
severe ascites
A
mesothelioma does not usually spread to the bone, brain, or adrenal glands. Pleural tumors are usually found only on one side of the lungs
Diagnosing
mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history. A history of exposure to asbestos may increase clinical suspicion for
mesothelioma A physical examination is performed, followed by chest X-ray and often lung function tests. The X-ray may reveal pleural thickening commonly seen after asbestos exposure and increases suspicion of
mesothelioma A CT (or CAT) scan or an MRI is usually performed. If a large amount of fluid is present, abnormal cells may be detected by cytology if this fluid is aspirated with a syringe. For pleural fluid this is done by a pleural tap or chest drain, in ascites with an paracentesis or ascitic drain and in a pericardial effusion with pericardiocentesis. While absence of malignant cells on cytology does not completely exclude
mesothelioma it makes it much more unlikely, especially if an alternative diagnosis can be made (e.g. tuberculosis, heart failure
If cytology is positive or a plaque is regarded as suspicious, a biopsy is needed to confirm a diagnosis of
mesothelioma A doctor removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples.
If the cancer is in the abdomen, the doctor may perform a laparoscopy. To obtain tissue for examination, the doctor makes a small incision in the abdomen and inserts a special instrument into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
There is no universally agreed protocol for screening people who have been exposed to
asbestosScreening tests might diagnose mesothelioma earlier than conventional methods thus improving the survival prospects for patients. The serum osteopontin level might be useful in screening asbestos-exposed people for
mesotheliomaThe level of soluble mesothelin-related protein is elevated in the serum of about 75% of patients at diagnosis and it has been suggested that it may be useful for screening. Doctors have begun testing the Mesomark assay which measures levels of soluble mesothelin-related proteins (SMRPs) released by diseased mesothelioma cells
Incidence
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. The incidence rate is approximately one per 1,000,000. The highest incidence is found in Britain, Australia and Belgium: 30 per 1,000,000 per year. For comparison, populations with high levels of smoking can have a lung cancer incidence of over 1,000 per 1,000,000. Incidence of malignant mesothelioma currently ranges from about 7 to 40 per 1,000,000 in industrialized Western nations, depending on the amount of asbestos exposure of the populations during the past several decades. It has been estimated that incidence may have peaked at 15 per 1,000,000 in the United States in 2004. Incidence is expected to continue increasing in other parts of the world. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age. Approximately one fifth to one third of all mesotheliomas are peritoneal.
Between 1940 and 1979, approximately 27.5 million people were occupationally exposed to asbestos in the United States.[ Between 1973 and 1984, there has been a threefold increase in the diagnosis of pleural mesothelioma in Caucasian males. From 1980 to the late 1990s, the death rate from mesothelioma in the USA increased from 2,000 per year to 3,000, with men four times more likely to acquire it than women. These rates may not be accurate, since it is possible that many cases of mesothelioma are misdiagnosed as adenocarcinoma of the lung, which is difficult to differentiate from mesothelioma.
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure exists in almost all cases. However, mesothelioma has been reported in some individuals without any known exposure to asbestos. In rare cases, mesothelioma has also been associated with irradiation, intrapleural thorium dioxide (Thorotrast), and inhalation of other fibrous silicates, such as erionite.
asbestos
is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven.
asbestos
has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
The combination of smoking and
asbestos exposure significantly increases a person's risk of developing cancer of the airways (lung cancer bronchial carcinoma). The Kent brand of cigarettes used
mesothelioma in its filters for the first few years of production in the 1950s and some cases of
. have resulted. Smoking modern cigarettes does not appear to increase the risk of mesothelioma.
Some studies suggest that simian virus 40 may act as a cofactor in the development of mesothelioma.
Asbestos was known in antiquity, but it wasn't mined and widely used commercially until the late 1800s. Its use greatly increased during World War II Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with
. exposure were not publicly known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos mines and mills, producers of asbestos products, workers in the heating and construction industries, and other tradespeople. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of
. exposure in the workplace, and created guidelines for engineering controls and respirators, protective clothing, exposure monitoring, hygiene facilities and practices, warning signs, labeling, recordkeeping, and medical exams. By contrast, the British Government's Health and Safety Executive (HSE) states formally that any threshold for
mesothelioma must be at a very low level and it is widely agreed that if any such threshold does exist at all, then it cannot currently be quantified. For practical purposes, therefore, HSE does not assume that any such threshold exists. People who work with
asbestos wear personal protective equipment to lower their risk of exposure. Recent findings have shown that a mineral called erionite has been known to cause genetically pre-dispositioned individuals to have malignant mesothelioma rates much higher than those not pre-dispositioned genetically. A study in Cappadocia, Turkey has shown that 3 villiages in Turkey have death rates of 51% attributed to erionite related
mesotheliomaExposure to
asbestos fibres has been recognised as an occupational health hazard since the early 1900s. Several epidemiological studies have associated exposure to asbestos with the development of lesions such as asbestos bodies in the sputum, pleural plaques, diffuse pleural thickening, asbestosis, carcinoma of the lung and larynx, gastrointestinal tumours, and diffuse mesothelioma of the pleura and peritoneum.
The documented presence of
asbestos fibres in water supplies and food products has fostered concerns about the possible impact of long-term and, as yet, unknown exposure of the general population to these fibres. Although many authorities consider brief or transient exposure to
asbestos fibres as inconsequential and an unlikely risk factor, some epidemiologists claim that there is no risk threshold. Cases of mesothelioma have been found in people whose only exposure was breathing the air through ventilation systems. Other cases had very minimal (3 months or less) direct exposure.
Commercial
asbestos mining at Wittenoom, Western Australia, occurred between 1945 and 1966. A cohort study of miners employed at the mine reported that while no deaths occurred within the first 10 years after crocidolite exposure, 85 deaths attributable to mesothelioma had occurred by 1985. By 1994, 539 reported deaths due to mesothelioma had been reported in Western Australia.
Family members and others living with
asbestos workers have an increased risk of developing
mesothelioma and possibly other asbestos related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to asbestosMany building materials used in both public and domestic premises prior to the banning of
asbestos may contain
asbestos Those performing renovation works or activities may expose themselves to asbestos dust. In the UK use of Chrysotile asbestos was banned at the end of 1999. Brown and blue
asbestos was banned in the UK around 1985. Buildings built or renovated prior to these dates may contain asbestos materials.
For patients with localized disease, and who can tolerate a radical surgery, radiation is often given post-operatively as a consolidative treatment. The entire hemi-thorax is treated with radiation therapy, often given simultaneously with chemotherapy. Delivering radiation and chemotherapy after a radical surgery has led to extended life expectancy in selected patient populations with some patients surviving more than 5 years. As part of a curative approach to
mesothelioma radiotherapy is also commonly applied to the sites of chest drain insertion, in order to prevent growth of the tumor along the track in the chest wall.
Although
mesothelioma is generally resistant to curative treatment with radiotherapy alone, palliative treatment regimens are sometimes used to relieve symptoms arising from tumor growth, such as obstruction of a major blood vessel.
Radiation Therapy when given alone with curative intent has never been shown to improve survival from
mesothelioma The necessary radiation dose to treat mesothelioma that has not been surgically removed would be very toxic.
Chemotherapy is the only treatment for
mesothelioma that has been proven to improve survival in randomised and controlled trials. The landmark study published in 2003 by Vogelzang and colleagues compared cisplatin chemotherapy alone with a combination of cisplatin and pemetrexed (brand name Alimta) chemotherapy) in patients who had not received chemotherapy for malignant pleural mesothelioma previously and were not candidates for more aggressive "curative" surgery. This trial was the first to report a survival advantage from chemotherapy in malignant pleural
mesothelioma showing a statistically significant improvement in median survival from 10 months in the patients treated with cisplatin alone to 13.3 months in the combination pemetrexed group in patients who received supplementation with folate and vitamin B12. Vitamin supplementation was given to most patients in the trial and pemetrexed related side effects were significantly less in patients receiving pemetrexed when they also received daily oral folate 500mcg and intramuscular vitamin B12 1000mcg every 9 weeks compared with patients receiving pemetrexed without vitamin supplementation. The objective response rate increased from 20% in the cisplatin group to 46% in the combination pemetrexed group. Some side effects such as nausea and vomiting, stomatitis, and diarrhoea were more common in the combination pemetrexed group but only affected a minority of patients and overall the combination of pemetrexed and cisplatin was well tolerated when patients received vitamin supplementation; both quality of life and lung function tests improved in the combination pemetrexed group. In February 2004, the United States Food and Drug Administration approved pemetrexed for treatment of malignant pleural mesothelioma. However, there are still unanswered questions about the optimal use of chemotherapy, including when to start treatment, and the optimal number of cycles to give.
Cisplatin in combination with raltitrexed has shown an improvement in survival similar to that reported for pemetrexed in combination with cisplatin, but raltitrexed is no longer commercially available for this indication. For patients unable to tolerate pemetrexed, cisplatin in combination with gemcitabine or vinorelbine is an alternative, although a survival benefit has not been shown for these drugs. For patients in whom cisplatin cannot be used, carboplatin can be substituted but non-randomised data have shown lower response rates and high rates of haematological toxicity for carboplatin-based combinations, albeit with similar survival figures to patients receiving cisplatin.
In January 2009, the United States FDA approved using conventional therapies such as surgery in combination with radiation and or chemotherapy on stage I or II Mesothelioma after research conducted by a nationwide study by Duke University concluded an almost 50 point increase in remission rates.
Treatment regimens involving immunotherapy have yielded variable results. For example, intrapleural inoculation of Bacillus Calmette-Guérin (BCG) in an attempt to boost the immune response, was found to be of no benefit to the patient (while it may benefit patients with bladder cancer.
mesothelioma cells proved susceptible to in vitro lysis by LAK cells following activation by interleukin-2 (IL-2), but patients undergoing this particular therapy experienced major side effects. Indeed, this trial was suspended in view of the unacceptably high levels of IL-2 toxicity and the severity of side effects such as fever and cachexia. Nonetheless, other trials involving interferon alpha have proved more encouraging with 20% of patients experiencing a greater than 50% reduction in tumor mass combined with minimal side effects.
A procedure known as heated intraoperative intraperitoneal chemotherapy was developed by at the Washington Cancer Institute. The surgeon removes as much of the tumor as possible followed by the direct administration of a chemotherapy agent, heated to between 40 and 48°C, in the abdomen. The fluid is perfused for 60 to 120 minutes and then drained.
This technique permits the administration of high concentrations of selected drugs into the abdominal and pelvic surfaces. Heating the chemotherapy treatment increases the penetration of the drugs into tissues. Also, heating itself damages the malignant cells more than the normal cells.

What is the mesothelium?
The mesothelium is a membrane that covers and protects most of the internal organs of the body. It is composed of two layers of cells: One layer immediately surrounds the organ; the other forms a sac around it. The mesothelium produces a lubricating fluid that is released between these layers, allowing moving organs (such as the beating heart and the expanding and contracting lungs to glide easily against adjacent structures.
The mesothelium has different names, depending on its location in the body. The peritoneum is the mesothelial tissue that covers most of the organs in the abdominal cavity. The pleura is the membrane that surrounds the lungs and lines the wall of the chest cavity. The pericardium covers and protects the heart. The
mesothelioma tissue surrounding the male internal reproductive organs is called the tunica vaginalis testis. The tunica serosa uteri covers the internal reproductive organs in women.
What is mesothelioma?
mesothelioma (cancer of the mesothelium) is a disease in which cells of the mesothelium become abnormal and divide without control or order. They can invade and damage nearby tissues and organs.
cancer cells can also metastasize (spread) from their original site to other parts of the body. Most cases of mesothelioma begin in the pleura or peritoneum.
How common is mesothelioma?
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. About 2,000 new cases of mesothelioma are diagnosed in the United States each year. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age.
What are the risk factors for mesothelioma?
Working with asbestos is the major risk factor for mesothelioma. A history of . exposure at work is reported in about 70 percent to 80 percent of all cases. However, mesothelioma has been reported in some individuals without any known exposure to
Asbestos is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven. . has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
Smoking does not appear to increase the risk of mesothelioma. However, the combination of smoking and asbestos exposure significantly increases a person's risk of developing cancer of the air passageways in the lung.
Who is at increased risk for developing mesothelioma?
asbestos has been mined and used commercially since the late 1800s. Its use greatly increased during World War II. Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with asbestos exposure were not known. However, an increased risk of developing mesothelioma was later found among shipyard workers, people who work in asbestos. Today, the U.S. Occupational Safety and Health Administration (OSHA) sets limits for acceptable levels of asbestos exposure in the workplace. People who work with asbestos wear personal protective equipment to lower their risk of exposure.
The risk o f asbestosrelated disease increases with heavier exposure to asbestos and longer exposure time. However, some individuals with only brief exposures have developed mesothelioma On the other hand, not all workers who are heavily exposed develop asbestos-related diseases.
There is some evidence that family members and others living with asbestos workers have an increased risk of developing mesothelioma, and possibly other asbestos-related diseases. This risk may be the result of exposure to
asbestos dust brought home on the clothing and hair of
asbestos workers. To reduce the chance of exposing family members to
asbestos fibers, asbestos workers are usually required to shower and change their clothing before leaving the workplace.
What are the symptoms of mesothelioma?
Symptoms of mesothelioma may not appear until 30 to 50 years after exposure to
asbestos Shortness of breath and pain in the chest due to an accumulation of fluid in the pleura are often symptoms of pleural mesothelioma. Symptoms of peritoneal mesothelioma include weight loss and abdominal pain and swelling due to a buildup of fluid in the abdomen. Other symptoms of peritoneal mesothelioma may include bowel obstruction blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions. It is important to see a doctor about any of these symptoms. Only a doctor can make a diagnosis
How is
mesotheliomadiagnosed?
Diagnosing mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history, including any history of asbestos exposure. A complete physical examination may be performed, including x-rays of the chest or abdomen and lung function tests. A CT (or CAT) scan or an MRI may also be useful. A CT scan is a series of detailed pictures of areas inside the body created by a computer linked to an x-ray machine. In an MRI, a powerful magnet linked to a computer is used to make detailed pictures of areas inside the body. These pictures are viewed on a monitor and can also be printed.
A biopsy is needed to confirm a diagnosis of mesothelioma. In a biopsy, a surgeon or a medical oncologist (a doctor who specializes in diagnosing and treating cancer) removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the
cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples. If the
cancer is in the abdomen, the doctor may perform a peritoneoscopy. To obtain tissue for examination, the doctor makes a small opening in the abdomen and inserts a special instrument called a peritoneoscope into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
If the diagnosis is mesothelioma, the doctor will want to learn the stage (or extent) of the disease. Staging involves more tests in a careful attempt to find out whether the cancer has spread and, if so, to which parts of the body. Knowing the stage of the disease helps the doctor plan treatment.
Mesothelioma is described as localized if the cancer is found only on the membrane surface where it originated. It is classified as advanced if it has spread beyond the original membrane surface to other parts of the body, such as the lymph nodes, lungs, chest wall, or abdominal organs.
How is
.treated?
Treatment for mesothelioma depends on the location of the
cancerthe stage of the disease, and the patient's age and general health. Standard treatment options include surgery, radiation therapy, and chemotherapy. Sometimes, these treatments are combined.
Surgery is a common treatment for
mesotheliomaThe doctor may remove part of the lining of the chest or abdomen and some of the tissue around it. For cancer of the pleura (pleural
mesotheliomaa lung may be removed in an operation called a pneumonectomy. Sometimes part of the diaphragm, the muscle below the lungs that helps with breathing, is also removed.
Stereo Tactic Radiation Therapy also called radiotherapy, involves the use of high-energy rays to kill
cancercells and shrink tumors Radiation therapy affects the
cancercells only in the treated area. The radiation may come from a machine (external radiation) or from putting materials that produce radiation through thin plastic tubes into the area where the
cancercells are found (internal radiation therapy).
Chemotherapy is the use of anticancer drugs to kill cancer cells throughout the body. Most drugs used to treat
mesotheliomaare given by injection into a vein (intravenous, or IV). Doctors are also studying the effectiveness of putting chemotherapy directly into the chest or abdomen (intracavitary chemotherapy).
To relieve symptoms and control pain, the doctor may use a needle or a thin tube to drain fluid that has built up in the chest or abdomen. The procedure for removing fluid from the chest is called thoracentesis. Removal of fluid from the abdomen is called paracentesis. Drugs may be given through a tube in the chest to prevent more fluid from accumulating. Radiation Therapy and surgery may also be helpful in relieving symptoms.
 

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