Balkinization  

Friday, November 17, 2006

In the Penal Colony

Scott Horton

I am a commercial lawyer; I spend a lot of my time doing work for insurance companies. I can't claim the ability to speak with pathos. Neither do I have the ability to wield great images which may be appropriate to the topic I want to open to you this morning. You will therefore, I hope, permit me to cite another commercial lawyer who spent most of his life working for an insurance company, a man who is much more talented than I. His name is Franz Kafka, and he stood at a cultural crossroads – a cultural German, a Jew, from a Slavic Jewish family – but for me at least, Kafka is above all a lawyer; a man with a strong commitment to justice and an abiding fear of its perversion. I share that commitment. I also share Kafka's fear of the ghost which is afoot in our world today. It is a mortal threat to our world, and by failing to look it in the eye and challenge it we put our civilization at risk. This moral challenge lies, I believe, at the center of Kafka's work.

In 1919, the Great War had ended and the empires of Middle Europe collapsed, and with them a great social order. In its wake came chaos, violence and terror. The Vehme struck; White terror battled Red terror. Political, social and cultural leaders in many cities were rounded up and cruel and arbitrary executions were commonplace. Only a few blocks from where we sit this morning, Rosa Luxemburg and Karl Liebknecht were seized, brutally beaten, tortured, interrogated and murdered by the Freikorps. In the height of the terror of 1919, Franz Kafka published In the Penal Colony. There is a tone of despair and darkness about this work; it is a depressing thing to read or relate.

In the Penal Colony, a visitor – on a voyage of exploration, he says – arrives on a tropical island which serves as a penal colony. Shortly he receives an invitation from the island's military commander to witness an execution. In a drawn-out discussion, the visitor learns from an officer sent to greet him that the prisoner who is to be executed has no idea that he has been accused or charged of anything; nor of the penalty that awaits him. The penalty, in fact, is horrific – before he is executed, the prisoner is to be mutilated by a great machine designed to carve his offense in florid letters into his body. The process is a simple one, says the officer: he handles every stage of it, and there is no need for a defense – after all, says the officer, who is accuser and judge, he always starts from the premise that the accused is guilty. Indeed, are we not all guilty?

This presents a moral dilemma to the visitor. He recognizes the injustice and inhumanity of what is about to transpire. But he is after all just a visitor; moreover, a foreigner. What does all of this mean to him? Isn't it easier for him just to hold his peace and get off this island hell as quickly as he can?

Before reaching its end, the plot takes a number of ever more grotesque turns – the torture machine malfunctions, producing an unexpected and terrible death, and the visitor beats a hasty departure from the island. The images are horrific and the message is grim. This is a world in which justice has been denuded of meaning; public torture is being pursued as a sort of sport. Human beings are reduced to so much livestock.

In the Penal Colony is a nightmare. It reflects Kafka's fear of the corruption of justice in a crucible of terror. It is the nightmare he saw drawing near on the horizon of Central Europe's history. But it has not passed.

Let us not make the mistake of viewing the Penal Colony as a historic or literary relic. The Penal Colony exists today. It has many other names. Guantanamo, Abu Ghraib, Baghram and the Salt Pit, for instance.

As the chair said, the American Supreme Court showed the majesty of the law in ruling that the detainees in this conflict had the protections provided by Common Article 3 of the Geneva Conventions. But unfortunately, the matter has not rested with that determination.

This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights." It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees. It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws. The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic. It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

But beyond this, every day's newspaper brings us more grotesque turns. Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys. And in one case, that of Majid Khan, the Department specifically argued that if he got a lawyer, the lawyer must be forbidden from asking any questions about how Majid Khan was treated in the hands of the CIA. His treatment, it is said, is classified as TOP SECRET//SCI Level. Therefore, his lawyer is not entitled to know anything about it. Moreover, it would be better if he never had a lawyer. I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations. The suspicion is near that the TOP SECRET label was affixed in this case to obscure criminal conduct. The use of security classifications in such a way is the hallmark of a tyrannical society. What attitude towards justice does this reveal?

Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures. They also recently told a magazine seeking information about his case, that all their concerns about Bilal Hussein were classified information and could not, therefore, be shared with anyone. To this day, they maintain they have the right to continue to hold Bilal Hussein indefinitely, on the criminal offense of being a journalist. What attitude towards justice does this reveal?

Ladies and gentlemen, I ask you to read your newspaper today very carefully. In it you will find another – now the third – report prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods – potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort. The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony. What attitude towards justice does this reveal?

I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice. That is something quite different. It may well be that Majid Khan is a serious criminal responsible for crimes against humanity. It may well be that he used or promoted the use of terror as a device. If that is so, he should be charged and given a fair chance to defend himself. This trial, fairly run, will vindicate my nation's counterterrorism efforts. It will show those who are held for heinous criminals, if they are heinous criminals. It would promote the view in the world that my nation has and pursues a just cause, and treats those in its power with justice, though the justice be severe.

In the end justice is a glorious thing and the evasion of justice is shameful. But we must remember, as both Robert H. Jackson and Hannah Arendt have taught us, that this process is not simply about justice. It is also about the appearance of justice. Failing that, we run a severe risk. The penal colony may now be an island. But soon it may become the world.

---------

Prepared remarks for the November 17, 2006 meeting of the Club de Madrid, Berlin, Germany.

Comments:

Scott,

Thank you, again, and again, and again, for speaking so openly and passionately. By doing so you "promote the view in the world that my nation has and pursues a just cause, and treats those in its power with justice, though the justice be severe." Your example is especially heartening for this 2l.
 

Mr. Horton:

This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights."

Really? That is quite a charge to be making against your country to a foreign audience. I hope you can back it up.

It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees.

To the contrary, the MCA is filled with pages of procedural rights which alien unlawful enemy combatants have never been previously granted under US laws.

It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws.

This also is incorrect. Pursuant to its plenary Article I power to set the rules for Captures, Congress defined the requirements of the Geneva Conventions for the courts. These are requirements which may be enforced by the courts. They may not be the requirements you wished for, but to claim that there are no requirements is worng.

The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic.

This is misleading. You cannot abolish something which never existed in the first place. In over 500 years of its existence, the Great Writ was never extended in Britain or the US to alien enemy combatants to contest their detention for the duration of hostilities. In the Rasul decision, five members of the Supreme Court rewrote half a millennium of precedent in the US habeas statute to extend this right for the first time. Congress corrected this misinterpretation of their law twice in the DTA and the MSA.

It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions. The CSRT complies with the Geneva Conventions requirement to hold a status hearing to determine whether the detainee falls under the definitions of lawful combatant or civilian with the protections which accrue to those persons.

Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys.

This is misleading. A group of civilian attorneys demanded access to Majid Kahn and to the classified information to which he is allegedly privy. The Government is opposing allowing these attorneys access to Kahn, not all attorneys. If Kahn is tried by a military commission for war crimes, the MCA requires that he be provided with two attorneys, presumably with the proper security clearances.

I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations.

Long established by whom? The long standing definition of torture under US law was the intentional infliction of severe pain, which we agreed to in the Torture Convention and then applied to the Geneva Conventions through the MCA. None of these techniques falls under that definition.

Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures.

Please. Hussein was disseminating enemy propaganda, was captured consorting with two enemy combatants in an apartment with bomb making materials.

The photographs were not news, they were propaganda meant to spread terror. Hussein took photographs with the obvious consent of the enemy of terrorists committing war crimes by executing poll workers and other civilians. These photos were permitted by the enemy to spread fear in the population.

This is the equivalent of a German photographer taking photographs of SS executions of French civilians to be given to AP for dissemination in the world media to serve as an example of what happens to those who aid the French resistance.

In it you will find another – now the third – report prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods – potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort.

This report was drafted by people who have no access to the classified intelligence used to make the determination. All they have access to is the heavily redacted portions of hearing minutes and documents which have been declassified.

The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants.

http://fpc.state.gov/fpc/61444.htm

At least ten of these released detainees returned to fighting our troops in Afghanistan.

http://www.washingtonpost.com/wp-dyn/
articles/A52670-2004Oct21.html

It is also very telling that the EU countries which lecture us on the need to close Gitmo and release its detainees refuse to take into their own countries the detainees which our CSRT wants to release. They do not want to take the risk which they urge upon us.

Therefore, the status hearings are arguably too permissive rather than too strict and are releasing enemy back to the battlefield.

The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony.

Status hearings are not and never have been trials for criminal acts. They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing. The CSRT hearings are far more elaborate affairs.

I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice.

That is a distinction without a difference. You appear to be arguing for criminal standard of proof and procedures in status hearings for enemy combatants for the first time in history. Obviously, this would lead to the release of far more enemy combatants to return to the battlefield to kill our soldiers than is currently the case.
 

"I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice."

"That is a distinction without a difference."

Yes, it probably is, and that's because they may well all be innocent. That's why Bush won't try them.
 

Bart:

Status hearings are not and never have been trials for criminal acts. They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing.

We've been over this so many times we are going round and round in circles. You refer to what was permitted as a matter of battlefield exigency in the case of enemies captured in actual combat (very strong evidence that they were actual combatants).

In this case we are dealing mostly either with arrests (some of them far from the actual theater of combat) or with people handed over to us by local warlords. The exigencies of combat do not apply.
 

@bart: or what, or you are going to say that Horton is a taitor?
 

I'm crossposting this question to humblelawstudent from another post because (in my arrogance) I believe this is a point of discussion worth pursuing.

@humblelaswstudent: so we agree on the basics. A president and congress have warpowers. They shouldn't use these powers unless there is a war.

You said congress cannot declare a war without an enemy although it might authorise the use of force.

Let's suppose that Congress and the President legally cannot start a war "without an enemy" ie cannot start a war on drugs (you said "should not" I added "legally cannot"). If we take this assumption there is a scale between a legal war (for example WOII) and un illegal war (hypo: war on drugs). Now we would have to find where the war on terror would fit in.

Personally I would argue that the war on terror is like the war on drugs. There is not one clear enemy (there is a combination of enemies we call terrorists) let allone a state to wage war on. There is not a clear battlefield because the "enemy" is not one actor but a bundle of actors. I would say that war on terror is remarkably similar to the war on drugs. The only constant factor is the U.S.'s use of force.

On our hypothetical scale between a legal and a illegal war the war on terror would as close to the war on drugs (the predefined illegal war) as a war could be.

This is not to say that the use of force against terrorists is or should be illegal. I would say that there is a struggle (to avoid the use of the word war) against terrorism. Certain battles in this struggles could be considered legal wars on the hypothetical scales, other battles we are fighting because we were asked to help by a governemt.

In Afghanistan and in Iraq there were wars. We attacked and invaded another State and took away their sovereignty. Both ended being wars when the soverignty was transferred back to the newly installed governments. From that time on there is no longer a war, but the US is asssisting sovereign governments in more or less internal strifes.

In the same sense we cannot say that the US fought a war against communism. The us fought wars in Vietnam and Korea (we can argue about the last one because there was somewhat of an invitation), but not against "communism".

As soon as we take the "war" out of the war against terrorism the whole use of the war powers collapses.
 

If I may address one of the snotty remonstrances of Mr. DePalma - the Geneva Conventions, in addition to torture, prohibit "cruel treatment … outrages upon personal dignity, in particular, humiliating and degrading treatment". Anyone able to convene a court of common sense would agree that "waterboarding, long-time standing and the coldcell or hypothermia" are prohibited by the Geneva Conventions.

I have no adequate way to thank you Mr. Horton, for your passion in pursuit of a world that is kinder and more just.
 

@Bonnie: Bart would say it's all a matter of jury selection. And believe me, he is a picky selector (because hardly anybody agrees with him anymore)
 

"The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants."

False. The number is 38.
I am not aware of any reports of any of those 38 being recaptured fighting in Afghanistan. (Two or three are still being held it Guantanamo.)

(The CSRT was not the only mechanism by which people got out of GTMO--people were released before and after, in a series of fairly arbitrary decisions. There's a guy there who was tortured by the Taliban and Al Qaeda--the Taliban information minister who announced his arrest as a CIA "spy" was released years ago. A few fairly high level suspects released while people who it's pretty damn obvious are innocent just wait and wait. The single greatest factor in release decisions is how much their native country wants them released, and how much pull that country has with us.)
 

Anne:

I think your analogy between the "War on Terror" and the "War on Drugs" is a useful comparison. In both cases, as you say, we are dealing with something that is really not big enough to be a belligerent. Your proposal is to treat it as a criminal matter.

But I would say that some of these drug cartels, though not big enough to be belligerents in a war, are too large to be mere criminals. You need only look at major drug growing countries -- aerial defoliation of coca fields, rival drug lords battling for power, alliances between drug dealers and rebel groups financed by drug profits -- to see that "war" was more than just a metaphore. Even some U.S. inner cities had rival drug guns fighting for control with military-style weapons.

But certainly none of this justfies invading Colombia to suppress drug traffic, or declaring our inner cities war zones and sending in the Marines Fallujah style.

I believe much of our problem is that we are dealing with something too big to be crime and not big enough to be war. We don't really have any laws or procedures for dealing with that. Looking at how we deal with another intermediate enemy (like drug cartels) can be a valuable source of guidance.
 

Interesting that bush the Sr. sought to address a social ill with a 'war', and his son followed in his footsteps. The elder wanted to tackle a very difficult problem by mustering resources using the rhetoric of war. How is it that we think that war is a source of power? It has power to be sure. Peace has more power, though. Its about solving problems, war is about replacing one set of problems with a bigger set of problems in all but the rare case.

Peace has more power than war.
 

Long established by whom? The long standing definition of torture under US law was the intentional infliction of severe pain, which we agreed to in the Torture Convention and then applied to the Geneva Conventions through the MCA. None of these techniques falls under that definition.

Bart and everyone please look at Evan Wallach's draft (soon to be published at Columbia) at the link below entitled Drop by Drop: Forgetting the History of Water Torture in U.S. Courts

http://www.pegc.us/archive/Articles/wallach_drop_by_drop_draft_20061016.pdf

Please stop being in denial about waterboarding being torture. It really gets boring.

Best,
Ben
 

@enlightenedlayperson: What I am saying is that Bush picks and chose between the crime and war paradigm. The gobal war on terror lacks defining caracteristics that make a war.

Maybe if I do have to choose between war and crime I would choose crime, because than I would be able to fight terrorism as a conspiracy to terrorize. I would use the intelligence services because this conspiracy threatens the safety of people.

I liked my analogy to Communism better. Communism is a ideology, just as terrorism, we cannot fight an ideology with guns.
 

Scott:
It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

Bart responds with:
You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions.

The MCA does define lawful and lawful combatants, and it does refer to the pre-existing CSRTs, but it does NOT preclude the President or the Secretary of Defense from deciding status outside of the CSRTs.

Unlawful enemy combatant status is assigned when either 1) the person has openly engaged in hostilities, but fails to meet the criteria of a lawful enemy combatant; or 2) the person is determined to be an unlawful enemy combatant by "a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Note the distinct absence of an "and" between those criteria.

Elsewhere, Bart dismisses Scott's claim that the MCA "demands that no litigant cite or ask a court to take notice of the Geneva Conventions."

While there are assurances in some parts of the MCA that the commissions conform to aspects of the Geneva Conventions, the MCA is quite clear about the litigant's right to cite the GC: "No alien enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of rights."
 

Just for Bart's amusement . Remember those good ol' days when Bart used to argue that there was a clear definition of enemy combatants and that the review tribunal actually cared? Well they care so much that they never heard a witness from outside of guantanamo... Sleep well Bart, Bush will protect you.
 

Enlightened Layperson said...

Bart: Status hearings are not and never have been trials for criminal acts. They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing.

We've been over this so many times we are going round and round in circles. You refer to what was permitted as a matter of battlefield exigency in the case of enemies captured in actual combat (very strong evidence that they were actual combatants).

In this case we are dealing mostly either with arrests (some of them far from the actual theater of combat) or with people handed over to us by local warlords. The exigencies of combat do not apply.


1) These are not arrests by civil authorities, these are captures of enemy combatants by the military.

2) The execution rather than the detention of unlawful enemy combatants has nothing to do with the exigencies of combat. Unlawful enemy combatants who endanger civilians or our troops by disguising as civilians or our troops have been executed throughout our history.
 

Anne said...

@bart: or what, or you are going to say that Horton is a taitor?

I never said this. Why does it leap to your mind that Mr. Horton is engaging in treason?

Treason is giving aid and comfort to the enemy. Mr. Horton is not spreading enemy propaganda, so I would not call him a traitor.

If these are knowing falsehoods slandering the government, you could make an argument for sedition, but not treason.
 

Katherine said...

"The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants."

False. The number is 38.

I am not aware of any reports of any of those 38 being recaptured fighting in Afghanistan. (Two or three are still being held it Guantanamo.) (The CSRT was not the only mechanism by which people got out of GTMO--people were released before and after...


It is possible that the military released many of the 200 in initial reviews prior to a formal CSRT status conference. I do not have that information. However, the end result is the same. The military conducted status hearings released 200 and some came back to fight us again.
 

PMS_Chicago said...

Scott: It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

Bart responds with: You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions.

pms: The MCA does define lawful and lawful combatants, and it does refer to the pre-existing CSRTs, but it does NOT preclude the President or the Secretary of Defense from deciding status outside of the CSRTs.


Scott claims that the MCA grants the President the right to declare anyone he wants at an unlawful enemy combatant.

You and I agree that the MCA provides definitions which bar arbitrary designation of unlawful enemy combatants.

I presume that it is theoretically possible that the President or SecDef could apply the MCA definitions under the President's Article II power, but they have not done so and the MCA is silent on that issue.

Elsewhere, Bart dismisses Scott's claim that the MCA "demands that no litigant cite or ask a court to take notice of the Geneva Conventions."

While there are assurances in some parts of the MCA that the commissions conform to aspects of the Geneva Conventions, the MCA is quite clear about the litigant's right to cite the GC: "No alien enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of rights."


I never denied this.

The rights granted by the Geneva Conventions are often vague to the point of uselessness.

The Congress has the plenary right under Article I to set the rules for Captures which would include defining the Geneva Convention rights which US law will apply. They did so under the MCA and denied the courts the right to redefine those rights any other way.
 

I'll just have to wait if other commenters will take your bait and repeat you. can't hear you
 

It is just so sad to have such a great sight stuck with Bart.

To anyone who hasn't figured it out, Bart pretends to dialogue, but almost without exception he either ignores or dismisses information he doesn't already agree with. His legal interpretations, his facts and his references are highly suspect. When he posted on Glenn Greenwalds' blog he would regularly link to articles that did not say what he claimed they did. He will also continue to assert facts and arguments that have been clearly refuted in previous threads.

But he's much more polite than he used to be, and clearly puts more work into his arguments than he used to. He sometimes even makes valid and interesting points. That may just be the law of averages, but the fact that he's not lisening doesn't mean he has nothing to say.

I have nothing against Bart except that I fear he drives away far more people than he convinces. I used to think this was his intention but more likely he just likes to argue. Clearly he thinks he's really good at it.

Perhaps this is obvious to readers of the comments section, but at Greenwald's I've seen so many commenters argue with Bart as if he were arguing in good faith. He's not. He has simply ignored or misrepresented facts in evidence too many times to be given the benefit of the doubt.

Nothing personal.
 

@bullsmith: I think a lot of us reckognize that Bart "arguments" and "debating techniques" are disingenuous. We all respond differently. Some (try to) ignore him, but some decide to take him on. Not because it will be an honest debate, but because his nonsense cannot be left undisputed. In this days of spin it happens too often that the person most ardent about his truth is perceived as right (I guess Colbert would call it thruthiness).

In a weird kind of way I think it is important to have Bart around. Not only to play with, but because he represents the true believers in the Bush doctrine: all the powers to the president regardless of the consequenses. It is good to get to hear this point of view because there are to many people buying in to it. At blogs like this one, people tend to forget this reality. Bart makes us remember who we are really arguing against.
 

You and I agree that the MCA provides definitions which bar arbitrary designation of unlawful enemy combatants.

Not quite. I agree that there are definitions provided in the MCA, but there are no provisions in the MCA to bar arbitrary designation, save the use of tribunals deemed competent by the President or the Secretary of Defense.

This is what gives people like Robert and me such heartburn: with no firm idea of what constitutes competence, it is open for abuse by the executive.
 

@pms: and we know how these tribunals should be viewed. new report just released. The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases. All requests by detainees for witnesses not already detained in Guantánamo were denied. And the list goes on. Read the thing it is quite damming.

Darned liberals again.
 

Scott claims that the MCA grants the President the right to declare anyone he wants at an unlawful enemy combatant.

Just in case anyone's unfamiliar with this sophistry, the point is not whether the President "can" do this.

Rather, it's this: if the President DOES wrongly designate someone an UEC, then how does that person challenge the designation?

If he's said to be a non-citizen (again, rightly or wrongly), then he has no habeas rights and no entitlement ever to appear before a CSRT.

As history shows, habeas originated to prevent the king from tossing you into his dungeon (Fr. "oubliette," from "to forget," as in, forget about seeing THAT guy again) indefinitely.

That's precisely why habeas is called for here, and why you CAN'T HAVE THE RULE OF LAW WITHOUT HABEAS. Period.

None of that's to persuade DePalma, who is unpersuadable by any honest argument, but rather for the benefit of anyone coming upon the issue for the 1st time here. Veterans like Anne, PMS Chicago, etc. already know all that.
 

Wow, Anne, thanks for that link.

One part really jumped out at me: In three of the 102 CSRT returns reviewed, the Tribunal found the detainee to be not/no-longer an enemy combatant. In each case, the Defense Department ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to no longer be an enemy combatant by two Tribunals, before a third Tribunal was convened
which then found the detainee to be an enemy combatant.


I only hope the government had the common playground courtesy to yell "Do over!" before ordering the new tribunals.
 

The "do over" tribunals remind me of Stalin's show trials, in that, guilt having been predetermined, they were conducted for some other purpose.
 

Bart: ...the rules for Captures...

There's that capital C again. ;)

Anderson, you're spot on, both in your analysis of what's important and the illegitimacy of Bart's methods and the clued-in nature of certain regulars. The best bet is still to not feed the troll, but it's human nature to get a guilty kick out of baiting the bear.

btw, Bart, did you ever find that passage in the text of the MCA that lets your family prove your citizenship when you they pick you up, wrongfully, as an AUEC? Still no? Pity.
 

PMS_Chicago said...

BD: You and I agree that the MCA provides definitions which bar arbitrary designation of unlawful enemy combatants.

Not quite. I agree that there are definitions provided in the MCA, but there are no provisions in the MCA to bar arbitrary designation, save the use of tribunals deemed competent by the President or the Secretary of Defense.


:::sigh:::

Exactly why were the definitions included in the statute if Congress did not mean them to be followed?
 

Anne said...

@pms: and we know how these tribunals should be viewed. new report just released. The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases.

So what? Once again, status hearings are not trials. They are simply reviews by the military of evidence concerning the status of the detainee.

We have never provided trials for enemy combatants to challenge the evidence underlying their detentions. Never. There is absolutely no reason to start now.

Every detainee has been interrogated extensively. He had every opportunity to inform the interrogator of his life story. These statements can be and are checked out. 200 detainees have been released because their stories checked out.

Indeed, a detainee has no right to silence as to his status. Even you folks should know the obligation to give name, rank and serial number from the movies. The purpose of that required information is so the capturing military can verify your status under the Geneva Conventions.
 

Robert Link said...

Bart: ...the rules for Captures...

There's that capital C again. ;)


Since I have to keep referring back to the Constitutional language to remind you folks of Congress' plenary authority to set rules in this matter, I have taken to using the archaic term "Captures," which is capitalized in Article I.

Anderson, you're spot on, both in your analysis of what's important and the illegitimacy of Bart's methods and the clued-in nature of certain regulars. The best bet is still to not feed the troll...

That would save me time responding to you.

I visit about a half dozen blogs and reply to interesting posts by the bloggers. Then, I try to be polite and reply to posts directed to me by other readers of that blog.

If you do not care to engage in a debate, do not respond to my posts.
 

@Bart: So what if these tribunals amount to nothing? The "low ranking" detainees can be held forever without a trial, but you don't care about teh tribunals? Remember, you said that the tribunals would save you when you would be wrongly detained as an enemy combatant.

We have never provided trials for enemy combatants to challenge the evidence underlying their detentions. Never. There is absolutely no reason to start now. That is disingenuous. We did provide trials to people who claimed to be either POW's or innocent civilians all together. Let's quote the Geneva Conventions on that one:
"A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal."
 

Every detainee has been interrogated extensively. He had every opportunity to inform the interrogator of his life story

Oh Bart, you are cracking me up. If only all those people would have chatted nicely with there interrogator pals, everyting would be alright! Then again your interrogator buddy just might no believe you...

I'm quite sure you won't read it, because you have have a dozen blog to read but please go and read about your cherished tribunal. Don't say you never said they were important: you said that if you would be detained (wrongly) as an enemy combantant these, the tribunals would set you free.
 

[PMS Chicago] I agree that there are definitions provided in the MCA, but there are no provisions in the MCA to bar arbitrary designation, save the use of tribunals deemed competent by the President or the Secretary of Defense.

[Bart]
:::sigh:::

Exactly why were the definitions included in the statute if Congress did not mean them to be followed?


:::sigh:::

A right without a remedy is barren. That's the whole fault with the MCA in a nutshell.
 

Yes, why would that be? Would it like making a law authorizing to build a fence, but not relocating money to actually build it?

Or would it be more like the argument the administration is now using in the padilla case: we didn't torture but even if we did, you cannot hold it against us.

Of course it is true that they are saying "you cannot hold it against us... in this criminal law case". But in a civil law suit they would invoke the executive privilege, thus barring any enforcement.

But it is good to see that Bart is beginning to ask the tough questions and this one bears repeating: Exactly why were the definitions included in the statute if Congress did not mean them to be followed?
 

Bart: If you do not care to engage in a debate, do not respond to my posts.

So that's still a "no such provisions in the MCA" with regards to my question about how your family gets to prove your citizenship when you get wrongfully picked up as an AUEC? Strange that you can whine about other parts of my post, even whine that I'm not "engaging you" and yet you can't answer this simple question. Could it be you just don't like the answer you'd have to give? Be clear that your failure/inablity/refusal to answer this one simple question really puts the lie to your protestations of "politeness". Folks who know you from other venues have warned us, and you never once have acted in a fashion to gainsay those warnings. Pity.
 

But don't you see Robert, Bart is way to busy commenting on half a dozen other blogs to engage with us in a civilized debate in which one gives an answer to the actual question posed.

Bart is not engaging in debate. He is making statements and proclamations.
 

Indeed, a detainee has no right to silence as to his status. Even you folks should know the obligation to give name, rank and serial number from the movies. The purpose of that required information is so the capturing military can verify your status under the Geneva Conventions.

Name and rank (and later, number and date of birth) was required so that you could be treated bureaucratically according to your status as an officer or an enlisted soldier, e.g. differential pay rates for labor. If captured soldiers failed or refused to provide their information, it did not remove their POW designation:

If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

In the classic WWII movies, you saw the name, rank, and serial number thing a lot not because it was an obligation of the Hague Conventions, but because it was a common rule of thumb placed upon the information that a captured soldier could give to the enemy. The idea wasn't so much to ensure good treatment as a POW of correctly identified status (officer vs. enlisted), but to avoid "spilling your guts" to the enemy.

While most soldiers weren't put into that position, all of them had the practice drilled into their heads by training. (Later it was hardwired into the US Military Code of Conduct). After the war, GIs returned home, and the WWII war movie genre took off soon thereafter. Any POW scene therefore would have to include the "name, rank, and serial number" bit as quite a bit of the audience was expecting it.

For WWII buffs, there's a couple of neat issues of Intelligence Bulletin available concerning the efficacy of name, rank, and number in resisting interrogation:

http://www.lonesentry.com/articles/priswar/index.html
http://www.lonesentry.com/articles/namerank/index.html
 

As usual, a miasma of factual and logical errors by "Bart" DePalma:

[Scott Horton]: This week, again, the Government of the United States, a land founded on a commitment of justice for all - my country - tells us that detainees in its campaign against terror have "no rights."

["Bart"]: Really? That is quite a charge to be making against your country to a foreign audience. I hope you can back it up.


He did. See below (and elsewhere). But it's hardly a charge against the country. Scott was explicit in charging the maladministration and the Republican-controlled Congress (i.e., the gummint). But "Bart" is hard of reading.

[Scott Horton]: It buttresses this with the Military Commissions Act recently passed by Congress, which purports to strip the American courts of jurisdiction over claims from these detainees.

["Bart"]: To the contrary, the MCA is filled with pages of procedural rights which alien unlawful enemy combatants have never been previously granted under US laws.


Nonsense. "Bart" is trying to claim that the Dubya maladministration is the ACLU's best buddy, and was trying to give rights to detainees. "Bart" conveniently forgets that it was the Rasul and Hamdan decisions which decided the law as it existed, which forced the maladministration to push for the MCA to enable its desired treatment of detainees (and even there, the courts managed to force the gummint's hand andget the gummint to at least provide the hearings that they had previously said they didn't need to provide. The U.S. Supreme Court slapped the gummint's hand, and said what it was doing was wrong. "Bart" is free to disagree with the court, but he's not free to pretend that what the court decided was not settled law.

[Scott Horton]: It also demands that no litigant cite or ask a court to take notice of the Geneva Conventions nor other related international laws – notwithstanding that our Constitution binds the courts to enforce these very laws.

["Bart"]: This also is incorrect. Pursuant to its plenary Article I power to set the rules for Captures, Congress defined the requirements of the Geneva Conventions for the courts. These are requirements which may be enforced by the courts. They may not be the requirements you wished for, but to claim that there are no requirements is worng.


The question of what happens when Congress acts in direct contravention of a lawfully passed treaty has not been addressed yet. Congress may "interpret" a treaty, but it's not quite clear they may disregard it. Whether they have done so may end up in court again.

[Scott Horton]: The act abolishes the writ of habeas corpus, which Thomas Jefferson called one of the essential pillars of the American Republic.

["Bart"]: This is misleading. You cannot abolish something which never existed in the first place. In over 500 years of its existence, the Great Writ was never extended in Britain or the US to alien enemy combatants to contest their detention for the duration of hostilities. In the Rasul decision, five members of the Supreme Court rewrote half a millennium of precedent in the US habeas statute to extend this right for the first time. Congress corrected this misinterpretation of their law twice in the DTA and the MSA.


"Bart" can cite to no such precedent. Because it doesn't exist. In fact, even the Ex Parte Quirincase recognised that at least on some matters, undisputed "alien enemy combatants" have a right to habeas corpus. Ex Parte Quirin rejected the Quirin petitioner's petition on the merits.

[Scott Horton]: It gives the president the potentially despotic power to remove anyone from the protection of the law simply by carving upon his body a label – the words "unlawful enemy combatant."

["Bart"]: You should know better than this. The MCA defines lawful and unlawful combatants and refers to the pre-existing Combat Status Review Tribunals as a body to make these decisions. The CSRT complies with the Geneva Conventions requirement to hold a status hearing to determine whether the detainee falls under the definitions of lawful combatant or civilian with the protections which accrue to those persons.


Non-responsive to the point. As has been pointed out previously by many, even the CSRT is not guaranteed. But that's a far cry from being given "protection of the law" when the person is indefinitely detained either way, but just being given soldier's pay in one case, along with a few other amenities and perqs. The fact that people far from any battlefield, in the midst of an open-ended and ill-defined "war on a noun", can be held as "enemy combatants" makes this all the more disturbing to those who believe in the rule of law. "Bart" talks below of 'battlefield determinations', but the exigencies of such are not on us for people that have been held for five years in a place half a world away from where they were taken into custody.

[Scott Horton]: Only a week ago, the Washington Post reported that the US Department of Justice was seeking to preclude a group of 14 detainees soon to be tried by military commissions from having access to attorneys.

["Bart"]: This is misleading. A group of civilian attorneys demanded access to Majid Kahn and to the classified information to which he is allegedly privy. The Government is opposing allowing these attorneys access to Kahn, not all attorneys. If Kahn is tried by a military commission for war crimes, the MCA requires that he be provided with two attorneys, presumably with the proper security clearances.


"Bart" thinks it's just great that the 'prosecution' should be able to provide the attorneys for the defence (I'd note that the Third Geneva Convention requires that those charged with crimes be given the lawyer of their choice). The brave (but now shunned) Lt. Cmdr. Charles Swift took Hamdan's case. But the military poobahs told Swift they wanted him to get Hamdan to plead guilty. Swift didn't do that, so now they forced Swift out of the Navy.

Perhaps if the Colorado prosecutors took the Dubya maladministration's tack, they'd get gummint appointed lawyers to plead all "Bart"'s DUI defendants guilty, and "Bart" would be out of a job....

[Scott Horton]: I don't know what was done to Majid Khan – but I do know what tactics the CIA has been using, thanks to the work of Newsweek, ABC News and others. In particular, this has included three techniques: waterboarding, long-time standing and the coldcell or hypothermia. Each of these techniques has long been established to be a crime under the law of nations.

["Bart"]: Long established by whom? The long standing definition of torture under US law was the intentional infliction of severe pain, which we agreed to in the Torture Convention and then applied to the Geneva Conventions through the MCA. None of these techniques falls under that definition.


"Bart" lies. The U.N. Convention Against Torture prohibits intentional infliction of "severe pain or suffering" (also "whether physical or mental", just so we don't let "Bart" pretend or suggest by omission that only physical pain is covered). I'd note that the gummint has bragged that the waterboarding got Khalid Shaikh Mohammed to come through in three minutes and that he supposedly was one of the ones that lasted longest. The Spanish Inquisition would stand in awe, I'm sure.

[Scott Horton]: Bilal Hussein received the 2004 Pulitzer Prize for photojournalism. He has just completed seven months in detention, first in Abu Ghraib and then in Camp Cropper. He has never been charged with anything. US Forces maintain that he took pictures that show insurgents. They make clear that they do not like his pictures.

["Bart"]: Please. Hussein was disseminating enemy propaganda, was captured consorting with two enemy combatants in an apartment with bomb making materials.

["Bart"]: The photographs were not news, they were propaganda meant to spread terror. Hussein took photographs with the obvious consent of the enemy of terrorists committing war crimes by executing poll workers and other civilians. These photos were permitted by the enemy to spread fear in the population.

["Bart"]: This is the equivalent of a German photographer taking photographs of SS executions of French civilians to be given to AP for dissemination in the world media to serve as an example of what happens to those who aid the French resistance.


If the gummint thinks he's aided Terra-ists, they should charge him (and lay out their evidence). That's all the AP has asked. That he's been essentially "disappeared" for the supposed 'crimes' of bomb-making and producing "enemy propaganda" but hasn't been charged or given an opportunity to defend himself is what the sane people are complaining about. The fact that he has been detained but hasn't been charged is just prima facie evidence that what the gummint is doing does not comprt with any notions of fairness or due process.

[Scott Horton]: In it you will find another – now the third – report prepared by faculty and students at Seton Hall Law School examining the Combat Status Review Tribunal, a board composed to confirm the status of detainees in Guantanamo. Based on its determinations, detainees may be held for indefinite periods – potentially forever. Yet, as this study reveals, most proceedings occupy only a few hours, involve no witnesses and generally little meaningful evidence of any sort.

["Bart"]: This report was drafted by people who have no access to the classified intelligence used to make the determination. All they have access to is the heavily redacted portions of hearing minutes and documents which have been declassified.


"Bart" presumes to tell others what they do and do not know. My rebuttal here is easy: "Bart": What access do you have to the materials gone over by the Seton Hall Law students so that you can claim what they do and do not know? C'mon, "Bart", tell us: They let you into their workshop to poke around and look at the sufficiency of their research, right?!?!? If not, perhaps you'll excuse us if we say your claim is full'o'sh*te.....

["Bart"]: The CSRT has released over 200 detainees after finding that they were either civilians or were not dangerous enough to detain as enemy combatants.

Until people started complaining, they weren't releasing anyone.

http://fpc.state.gov/fpc/61444.htm

["Bart"]: At least ten of these released detainees returned to fighting our troops in Afghanistan.

"S'pprrraaahhzz, s'pprrraaahhzz!" As Mike Royko put it when describing the South African foreman who, while
beating the workers with the butt of his shotgun, manage to discharge his gun and kill himself: Those ingrates didn't even start singing "Massa's In De Cold Cold Ground"....

http://www.washingtonpost.com/wp-dyn/
articles/A52670-2004Oct21.html

["Bart"]: It is also very telling that the EU countries which lecture us on the need to close Gitmo and release its detainees refuse to take into their own countries the detainees which our CSRT wants to release. They do not want to take the risk which they urge upon us.

No one has insisted that the U.S take these detainees in even if it releases them. So "Bart"'s claim that "[t]hey do not want to take the risk which they urge upon us" isn't true even if it were true that these countries (which "Bart" doesn't bother to document) refused to take them and furthermore for the reasons that "Bart" claims.

["Bart"]: Therefore, the status hearings are arguably too permissive rather than too strict and are releasing enemy back to the battlefield.

"[A]rguable". Perhaps. But "Bart" has made no such plausible argument.

[Scott Horton]: The detainees are not confronted with the accusations or evidence against them, given an opportunity to ask questions or conduct a case. Once more, the model that is adhered to is not the rich criminal or military justice system of the United States, but the model of Franz Kafka's Penal Colony.

["Bart"]: Status hearings are not and never have been trials for criminal acts....


Oh, quite true, quite true. In fact, as alluded to above, they just determine whether the person is a POW or a civilian. What is in fact needed is a determination of whether there's a reason for holding someone at all, not whether they're a POW or civilian. And, though "Bart" may not quite grasp the concept, that's kind of what a habeas corpus petition is all about.....

... They are simply hearings to determine the status of the detainee. Historically, such hearings were brief affairs conducted on the front and usually followed by a summary execution of the enemy combatant found to be fighting in our uniforms or in civilian clothing....

"Bart" keeps repeating this nonsense. Such a "summary execution" would be a war crime.

... The CSRT hearings are far more elaborate affairs.

As well they should be. But a hearing as to whether a person is a POW or just a civilian misses the point considerably, when the detainees are held in a secure location halfway around the world in an ill-defined and potentially endless "war on a noun", and particularly when such appellation and treatment is bestowed on U.S. citizens arriving on airplanes at O'Hare airport....

"Bart" seems to have missed the commentary where various people (including U.S. Supreme Court justices) have stated that the exigencies of the battlefield, whathever they are, must make way for the rule of law when these exigencies no longer pertain (or, if fact, never existed).

[Scott Horton]: I am not here to argue for release or freedom for those detained in the campaign against terror. I am arguing for justice.

["Bart"]: That is a distinction without a difference. You appear to be arguing for criminal standard of proof and procedures in status hearings for enemy combatants for the first time in history. Obviously, this would lead to the release of far more enemy combatants to return to the battlefield to kill our soldiers than is currently the case.


Not at all "obvious". Of course, "Bart"'s 'solution' might "obviously" lead to imprisonment of far many more detainees than are actually dangerous or guilty of some crime. Someone needs to tell "Bart"'s DUI clients that he thinks that they should be locked up just for good measure, even if they just 'had a few' (or even hadn't touched a drop that night as long as someone else said they did)..... Safer for eveyone, just to be sure, you know....

Cheers,
 

pms_chicago:

While there are assurances in some parts of the MCA that the commissions conform to aspects of the Geneva Conventions, the MCA is quite clear about the litigant's right to cite the GC: "No alien enemy combatant subject to trial by military commission may invoke the Geneva Conventions as a source of rights."

Translated from Dubyaesque into English (and reality):

"The only rights under the Geneva Convention you have are the ones that we say you have. We don't heeeeaaaaaarrrrr you. Nya-nya-NYA!!!!"

Cheers,
 

"Bart" DePalma:

If these are knowing falsehoods slandering the government, you could make an argument for sedition, but not treason.

Ahhhhh. "Bart" loves the crime of "sedition" as well....

"Bart" DePalma, meet Thomas Jefferson. Thomas Jefferson, mee... -- umm, put down the stick now, Tom, "Bart"'s just a little confoozed and unedjoomakated, that's all.....

Cheers,
 

"Bart" DePalma:

The rights granted by the Geneva Conventions are often vague to the point of uselessness....

Rrrrrriiigggghhht. All 100 or so articles of the Third and Fourth Geneva Conventions are "vague". "Bart" obviously hasn't read them.

By that standard, the Bill of Rights is just idle musings on a summer's day, and anyone who cites said "rights" ought to be laughed out of court ... or better yet, prevented from even mentioning such idle musings by statute....

Cheers,
 

"Bart" DePalma:

If you do not care to engage in a debate, do not respond to my posts.

Judging from the fact "Bart" ignores my critiques of his posts and 'logic', what can we infer from this? Yes, you in the back with your hand waving madly.... Oh. Yes. You're right. We covered that last semester; that's old news....


Cheers,
 

Arne: ...an ill-defined and potentially endless "war on a noun"...

Brilliant! I'm gonna steal that one.
 

@robert: read catch 22. It is actually a gem of Joseph Heller.

Oh, by the way, no one referenced to catch-22 with regards to the detainment. I'm pretty sure Joseph Heller invented the phrase "to dissapear someone"
 

Anne: It is actually a gem of Joseph Heller.

How embarrassing. Read that in High School, 1982. The comments about the feel of fresh tomatoes was the most memorable bit for me. Thanks for the proper attribution, but still, props to you for giving it currency.
 

@Robert: well that was Arne.

If I remember correctly you Heller mentiond plum tomatoes and likened them to women's breasts.
 

Anne: @Robert: well that was Arne.

Bloody san-serif rendering. Bloody dyslexia. Bloody. Apologies to you both, although I can't imagine either of you being offended. You're both bloody sharp.

Not a woman's breasts, but rather I recall the simile being "like the breasts of a young girl." The twist, of course, being how a padre would know such things.

We're getting quite a distance from the topic to which these notes are appended. Can we justify it on the similarities between Heller and Kafka?
 

mesothelioma Mesotheliomais a form of cancer that is almost always caused by exposure to Asbestos In this disease, malignant cells develop in the mesothelium, a protective lining that covers most of the body's internal organs. Its most common site is the pleura (outer lining of the lungs and internal chest wall), but it may also occur in the peritoneum (the lining of the abdominal cavity), the heart the pericardium (a sac that surrounds the heart or tunica vaginalis.
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jaundice, or yellowing of the eyes and skin
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severe ascites
A
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If cytology is positive or a plaque is regarded as suspicious, a biopsy is needed to confirm a diagnosis of
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Incidence
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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.
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asbestos 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
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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