Balkinization  

Tuesday, October 03, 2006

Has Congress unconstitutionally suspended the writ of habeas corpus?

JB

I promised earlier that I would return to the question whether the Military Commissions Act's (MCA) habeas stripping provisions are unconstitutional. Here is the beginning of an answer to this rather difficult question.

Article I, section 9 of the U.S. Constitution states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

If the MCA's habeas stripping provisions are unconstitutional, it might be because it violates this clause. That would be because we are not currently in invasion or rebellion, or the public safety does not require it.

The argument that we are not in rebellion or invasion would be that the invasion occurred on September 11, 2001, and the Suspension Clause is designed for emergencies. The emergency has passed, and we are now embarked on a more or less permanent War on Terror. Whatever function the Suspension Clause serves, it is not designed for cases of permanent or indefinite suspension.

In addition to rebellion or invasion, the Suspension Clause also states that the public safety must require suspension. Public safety does not require suspension because the aliens at Guantanamo Bay have been in federal custody for many months, and in some cases for years. They do not offer a present danger to the United States. Allowing people to file habeas petitions in federal court does not endanger the public safety. The public safety test is designed for situations where courts and ordinary legal processes are not available and it is necessary to detain dangerous people immediately until order can be restored. There has been no loss of order in the United States or at Guantanamo Bay that would justify indefinite suspension of the writ.

But these arguments don't settle the matter.

The government might object that the Suspension Clause does not define "habeas corpus." The scope of the writ has been altered by legislation over the years. The government might argue that it is doing nothing more than eliminating non-mandatory statutory grants that are not part of the constitutionally required core.

Generally speaking the scope of constitutional habeas is based on historical practices at the time of the founding, supplemented by appropriate analogical extensions for new situations.

Historically, habeas was available for aliens as well as subjects in Great Britain. This was clearly the case within the boundaries of Great Britain; it also was available in British colonies as well.

How does this history apply to detainees at Guantanamo Bay? Justice Stevens' opinion in Rasul v. Bush found that the Guantanamo detainees had statutory rights of habeas and left open the constitutional scope of habeas. Justice Kennedy's concurrence insisted that "Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities." Equally important, Kennedy also pointed out that testing the legality of executive detention (as opposed to testing decisions of a court or tribunal) was a core function of habeas corpus:

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Thus the constitutional scope of habeas (protected by the suspension clause) might apply to Guantanamo Bay because the executive seeks to hold detainees indefinitely without trial in a place far from hostilities where the United States has long held exclusive control and plans to do so for the foreseeable future. [UPDATE: Note that Kennedy's point is that habeas for aliens is necessary to tell who is an enemy alien and who is not. As Marty points out, the MCA appears to give the President virtually complete discretion to determine that someone it has seized is an alien enemy combatant because the President says so. Moreover, if the government refuses to hold hearings on whether an alien it has imprisoned is an enemy combatant, the withdrawal of habeas means that there is no practical way to force it to do so.]

Although it is not directly on point, it is worth noting that the Habeas Corpus Act of 1679, styled "An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas," was passed to counter the King's habit of taking people overseas and holding them there in order to prevent the exercise of habeas corpus.

Even if one accepts all this, the Administration might still object that the question whether Congress has complied with the suspension clause is non-justiciable: It is a political question and is left to the complete discretion of Congress. Justice Thomas' dissent in Hamdi noted that the Suspension Clause's requirements might not apply to the present situation, and therefore it might be unconstitutional for Congress to suspend the writ; however, he stated that, even so, courts could not review Congress's decision.

I think that Justice Thomas overstates the case. The purpose of the Clause is to permit *temporary* suspensions to protect public safety. Even if courts give Congress great deference, which they undoubtedly should, it does not follow that no review of any sort is permissible.

The text of Article I, section 9, does not, at least on its face, commit this question exclusively to Congress. Article I, section 9 does not expand Congress's powers, it places limits on them. Nor do the other prohibitions in Article I, section 9 appear to be nonjusticiable. Certainly the courts have regularly passed on whether Congress has passed an ex post facto law.

If Congress's decision to suspend the writ were in all aspects unreviewable, Congress could suspend the writ forever, by declaring that the United States was in a permanent state of emergency. More importantly, it could suspend the writ for only a small class of persons who were politically powerless and politically unpopular.

The latter case is far more important than the former. The electoral process might be sufficient to police and respond to a general suspension of the writ that embraced all citizens. But the electoral process might be much less of a safeguard where Congress suspends the writ selectively for only a small class of citizens. And where Congress suspends the writ for those who have no political rights and are viewed with great suspicion-- aliens-- there is the least chance that the political process will remedy abuses of the Suspension Clause.

I've given some reasons why the MCA violates the Suspension Clause. However, there are still other issues to resolve. The government might object that, under Swain v. Pressley, Congress does not suspend the writ where it provides a remedy that is adequate and effective to test the legality of a person's detention. I don't think that the remedies available under the MCA and the Detainee Treatment Act are either adequate or effective for a significant class of persons or for some important claims that detainees might want to offer. But the issues are quite complex, and I leave a fuller discussion for another day.

In addition, even if aliens enjoy the right of habeas corpus, this does not settle whether their detention comports with the Due Process Clause. The process that the government has offered them might be all the process they are due. (This is what Justice Thomas argued in his dissent in Hamdi with respect to United States citizens; I assume he would make the same argument with respect to non-citizens). Again, I think that this claim is far too quick: At least for some alien detainees at Guantanamo Bay the process the government has offered doesn't comport with the minimum requirements of Due Process, but this claim, too, requires a far more detailed treatment than I can offer here.

I close with this thought: The MCA is important not only because of how it affects the current Guantanamo Bay detainees, but also how it affects every alien in the future, including people living in the United States. There are many non-citizens living in this country who are our friends, neighbors, and members of our community. They are people who you see every day on the streets, people you regularly do business with, people who may cook your food or care for your children. The Military Commissions Act allows the government to seize these people off the streets and detain them because they are non-citizens, and, by accusing them of being unlawful enemy combatants, throw them into a parallel system where neither habeas corpus nor the Bill of Rights apply. It takes even resident aliens who have lived in the country for years out of the criminal justice system and into the world of military prisons and CIA interrogations. The MCA allows the government to make mistakes-- very grievous mistakes-- in detention and interrogation that will severely harm these people and that it may never have to account for. A system of laws that can do this-- even if its primary victims are not citizens-- is inconsistent with the principles of a democratic republic.


Comments:

I have wondered if universities in this country might feel obliged to warn prospective foreign students that their safety cannot be guaranteed. At the moment, where non-citizens are concerned, the writ of habeas corpus has been suspended and, because no legal remedies are available to non-citizens in executive detention, even fundamental human rights exist only at the pleasure of the Executive Branch.
 

Prior to Rasul, the courts had not extended the writ to captured alien enemy combatants.

At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372, 380, n. 13 (1977); id., at 385-386 (Burger, C. J., concurring) (noting that "the traditional Great Writ was largely a remedy against executive detention"); Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). In England prior to 1789, in the Colonies,15 and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens.

INS v. St. Cyr, 533 U.S. 289, 301-302 (2000).

http://supreme.justia.com/us/533/289/
index.html

Therefore, it is unlikely that the drafters of the Constitution intended to extend any right to habeas corpus to alien enemy combatants.

As to whether denying habeas to alien enemy combatants is " inconsistent with the principles of a democratic republic," I would note that the US has captured hundreds of thousands of alien enemy combatants over the past two centuries and held them in the US and overseas. I am unaware of the courts ever entertaining habeas petitions from these captures prior to Rasul. Likewise, the British creators of the Great Writ did not extend this right to captured alien enemy combatants. Therefore, the MCA is perfectly consistent with Anglo American democratic republics.

Perhaps with this history in mind, the Court in Rasul extended the writ to enemy combatants for the first time in history by interpreting 28 U. S. C. §2241, not the Constitution. The Rasul Court never reached the question of whether the Suspension Clause somehow implies the alien enemy combatants have a constitutional habeas corpus right. Instead, the Court interpreted 28 U. S. C. §2241 to mean that Congress had extended this right to the enemy.

Taking Justice Scalia's recommendation in dissent to amend the statutes and reverse Rasul, Congress has now categorically made it clear by enacting the MCA that it is not extending habeas rights to alien enemy combatants. It will be interesting to see if the Court again ignores a congressional statute denying it the jurisdiction to hear what inevitably will be more enemy habeas petitions and then attempts to read such a right into the Constitution.

Such a court holding would be a radical departure from centuries of past jurisprudence on the matter. More importantly, a judicial vacation of the rules for captures enacted by the two elected branches of government would be a direct and unconstitutional attack on our democracy.
 

Bart, I think, begs the question. The question is whether an alien seized and placed in a military prison *is* an enemy combatant. If the government can simply declare any alien an enemy under section 948, and thereby deny access to habeas corpus, the language from St. Cyr that he quotes would be meaningless.
 

Well, but Professor Balkin, why isn't the test "declare in good faith," i.e., if the government declares in good faith that it believes that someone is an enemy combatant, that ends the discussion. Because, despite what some of the more hysterical commentators here and elsewhere say, I can assure you that no one at Guantanamo is there because he is a political opponent of George Bush, or the like.

On the day when the executive ceases to act in good faith, that will be the day for the courts to intervene.
 

One thing to remember is that even Stevens in Hamdi thought the Suspension Clause Rebellion-or-Invasion issue was nonjusticiable--he joined Scalia's dissent.
 

JB said...

Bart, I think, begs the question. The question is whether an alien seized and placed in a military prison *is* an enemy combatant. If the government can simply declare any alien an enemy under section 948, and thereby deny access to habeas corpus, the language from St. Cyr that he quotes would be meaningless.

The Supreme Court has conceded that the military can detain enemy combatants for the duration of a conflict so long as they hold status hearings to confirm the detainee is indeed an enemy combatant.

Therefore, I do not think the Court is going to challenge the military designation of a detainee as an enemy combatant for the purposes of determining whether the detainee is eligible for habeas corpus.
 

"On the day when the executive ceases to act in good faith, that will be the day for the courts to intervene."

It is unclear why we have a BOR etc. since obviously we can just trust the executive. I'm unclear why this "trust them" principle is limited to this narrow area.

It surely is amazing coming from people, not saying this person, who wouldn't trust let's say Clinton (does it only apply to certain presidents?) further than they could throw 'em.

As to BP, I think the point is that the post-WWII world is a bit different [the very theme of Rasul/Hamdan, though Stevens' boss back then along with a couple other justices felt we should have defended such people at the time too], especially as to int'l law and treatment of aliens.

I also am not really sure of some past incident in our history really comparable to the current sitatuation. Also, JB is right, this "assume guilty" philosophy is a bit too easy. And, all those "hundreds of thousands" tended to be legal combatants.

Again, the comparison is rather inexact. The times have changed some even since 1945. Time to comprehend the point.
 

This comment has been removed by a blog administrator.
 

I'm not going to rely too much on dicta Stevens did not even write but the point is of some note.

Honestly, I doubt he really would support the point that when "the writ is suspended, the Government is entirely free from judicial oversight" if directly forced to address the point.

But, that's just conjecture. Anyway, if he did, he would be wrong.
 

"The prohibition against their making any ex post facto laws was introduced for greater caution, and very probably arose from the knowledge, that the Parliament of Great Britain claimed and exercised a power to pass such laws, under the denomination of bills of attainder, or bills of pains and penalties; the first inflicting capital, and the other less, punishment. These acts were legislative judgments; and an exercise of judicial power. Sometimes they respected the crime, by declaring acts to be treason, which were not treason, when committed, at other times, they violated the rules of evidence (to supply a deficiency of legal proof) by admitting one witness, when the existing law required two; by receiving evidence without oath; or the oath of the wife against the husband; or other testimony, which the courts of justice would not admit; at other times they inflicted punishments, where the party was not, by law, liable to any punishment; and in other cases, they inflicted greater punishment, than the law annexed to the offence. The ground for the exercise of such legislative power was this, that the safety of the kingdom depended on the death, or other punishment, of the offender: as if traitors, when discovered, could be so formidable, or the government so insecure! With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice. To prevent such, and similar, acts of violence and injustice, I believe, the Federal and State Legislatures, were prohibited from passing any bill of attainder; or any ex post facto law. * * *

"I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive."

Calder v. Bull, 3 U.S. 386 (1798), 389-391.
 

I am wondering if its correct to equate the MCA's provision stripping jurisdiction from the federal courts with a suspension of the writ. At least formally, the MCA is about closing the forum of the federal courts to habeas petitions by aliens designated as unlawful enemy combatants. Nothing in the MCA would preclude a state court from entertaining a habeas petition from a detainee. Now, I am not sure whether or not a state court of general jurisdiction would be open to such petition. My (relatively uninformed) supposition is that state courts of general jurisdiction would have subject matter jurisdiction but the personal jurisdiction issues would be tricky. If state courts are open to these petitions (at least nominally) might not some claim that the MCA only addresses the proper forum for the petition and not substantive rights?
 

You raise a number of important issues implicated by the new law. One of them is indeed the justiciability of any exercise of suspension. Not only did Justice Thomas suggest in Hamdi that an act of suspension would be nonjusticiable, Justice Scalia (joined by Justice Stevens) did as well, as some prior comments here have noted. And, in so doing, each relied on Story’s Commentaries, which likewise argued that the right to judge whether the exigency supporting a suspension exists (namely whether there is a Rebellion or Invasion) was conclusively left for resolution by Congress. I think that in the legal challenges that are likely to follow to the new law, the Administration may well argue that suspension presents a political question. As you note, the argument is especially significant in its ramifications when made in the context of the ongoing War on Terror – after all, we are told that this war may outlive all of us, so a suspension shielded from judicial review may be far from temporary. I have an article forthcoming in the November issue of the Stanford Law Review that explores this very issue in detail. (The article is called “Is Suspension a Political Question?” and I will be posting it on SSRN shortly once the final editing of the piece is complete.) In the piece, I contend that suspension is not a political question, at least insofar as such an assertion suggests that the courts could not review an exercise of the suspension power to ensure that it follows from constitutional premises, namely the existence of a “Rebellion or Invasion.” This follows largely because of the longstanding relationship between the Great Wit and the fundamental right to due process.

The writ that we inherited in this country was tied closely to the Great Charter’s guarantee that one may be detained only in accordance with the rule of law. The very essence of the Great Writ is to protect one from being deprived of liberty without due process. Indeed, to hold someone in detention without affording her a judicial forum to test whether the detention is lawful is the very essence of a deprivation of liberty without due process. Thus, at their respective cores, the right to due process and the Great Writ are coextensive. The Supreme Court has recognized as much, treating challenges to curtailments of habeas jurisdiction as inviting inquiry under the Due Process Clause. (See, e.g., Swain.)

This relationship demonstrates why the judiciary should play a role in ensuring that any suspension follows from lawful premises. If one subscribes to the view that suspension is a political question, one must also accept that through any act of suspension (whether following from lawful premises or not), Congress effectively can switch “off” the guarantee of due process and shield this fundamental individual right from judicial protection. Such an end is difficult to reconcile with the traditional role of the courts and our constitutional tradition as the sole branch constituted for the very purpose of ensuring that individual rights are not improperly displaced by a political majority merely for the sake of expediency. Ultimately, to assert that suspension is a political question is to say that we all enjoy the most fundamental of due process guarantees at the pleasure of the political branches, and this simply cannot be squared with our constitutional traditions.

Professor Amanda Tyler, G.W. Law School
 

Well, but Professor Balkin, why isn't the test "declare in good faith," i.e., if the government declares in good faith that it believes that someone is an enemy combatant, that ends the discussion.

To quote a famous American, "Trust, but verify."

You seriously believe that this Administration has acted "in good faith" in its statutory enforcement obligations?

I can assure you that no one at Guantanamo is there because he is a political opponent of George Bush, or the like.

In some sense ALL of them are there for that reason.
 

Professor Balkin, when you say "The question is whether an alien seized and placed in a military prison *is* an enemy combatant", do you mean that all aliens have habeas rights? I can't help but read it that way. All must have the right to challenge the initial determination of status as an enemy combatant.
 

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

The Article does not say that habeus corpus may be suspended in cases of rebellion or invasion or when the public safety may require it. It specifies as grounds for suspension only situations which threaten public safety during times of rebellion of invasion.
 

AT's discussion leading to a view of habeas as misced with due process places the focus on the individual living within our society. To the degree that 'alien' detainees are stateless, they, too, are individuals. Congress has missed identifying these prisoners as persons; clearly, in the heated politics of the moment congress has voted 2:1 to keep the courts from listening, to keep the prisoners from telling the world their testimony was torture elicited. In a way congress has decided to adopt the immoral judicial values of its stateless adversaries; a very incongruous and ill fitting accretion to what had been a noble experiment in human dignity.
While there had been no invasion, there could be none; not in the sense the colonists conceived of disruption of civil peace in the XVIII century by an invader. And, while the detainees mostly are aliens, their rebellion is against the world economic and social order of our time; so, to the measure the US is a leader in globalized civilization, the detainees represent rebels against that matrix.
CG's reminder about the ex post facto defect at the root of the MCA is one more reason congress has tried to limit this pseudo martial law construction from undergoing any further scrutiny in the courts.
 

Ahhh, IC that "Bart" is up to his old tricks: Misciting law for propositions he's making up out of thin air:

Sez he:

Prior to Rasul, the courts had not extended the writ to captured alien enemy combatants.

[quoting from St. Cyr]: "At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.14 See, e. g., Swain v. Pressley, 430 U. S. 372, 380, n. 13 (1977); id., at 385-386 (Burger, C. J., concurring) (noting that "the traditional Great Writ was largely a remedy against executive detention"); Brown v. Allen, 344 U. S. 443, 533 (1953) (Jackson, J., concurring in result) ("The historic purpose of the writ has been to relieve detention by executive authorities without judicial trial"). In England prior to 1789, in the Colonies,15 and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens."

INS v. St. Cyr, 533 U.S. 289, 301-302 (2000).

Sorry, "Bart": The case you cited decided that courts do have jurisdiction to hear habeas petitions from aliens such as St. Cyr.

They did not decide (nor did they even state in the quoted snippet) that "alien enemy combatants" (or accused ones) do not have such rights.

"Bart"'s typical MO here, folks: Miscite law.

Cheers,
 

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asbestos 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 asbestos 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. 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.
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
mesotheliomatreated?
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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