Balkinization  

Wednesday, October 03, 2007

Torture Memo 2.0

JB

The New York Times reports that even after the Justice Department disowned the 2002 Torture memo in 2004, it created a new secret memo in February 2005 under the direction of the new Attorney General, Alberto Gonzales. This new memo, signed by the new head of the Office of Legal Counsel, Steven G. Bradbury, endorsed "the harshest interrogation techniques ever used by the Central Intelligence Agency." According to the Times report, this memo-- what I will call Torture Memo 2.0-- "for the first time provided explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures."

Mr. Gonzales approved the legal memorandum on “combined effects” over the objections of James B. Comey, the deputy attorney general, who was leaving his job after bruising clashes with the White House. Disagreeing with what he viewed as the opinion’s overreaching legal reasoning, Mr. Comey told colleagues at the department that they would all be “ashamed” when the world eventually learned of it.

Later that year, as Congress moved toward outlawing “cruel, inhuman and degrading” treatment, the Justice Department issued another secret opinion [also written by Bradbury], one most lawmakers did not know existed, current and former officials said. The Justice Department document declared that none of the C.I.A. interrogation methods violated that standard.

The twisting of law by the Justice Department under Alberto Gonzales is far worse than Gonzales' misleading testimony in front of Congress about the U.S. Attorney scandal. That scandal dominated the headlines for weeks. This one deserves far more searching press scrutiny. Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

What is particularly amazing-- and disturbing-- is that the revelation of the first torture memo had no effect on the Gonzales Justice Department. Instead, they resorted to misleading the public and twisting the law in secret opinions. And, as the Times report suggests, Gonzales found an all-too-eager ally in the talented Mr. Bradbury, who was given a probationary period as head of OLC to see whether he would produce the sort of legal advice that the Bush Administration wanted. Bradbury, it appears, was only too happy to comply. He signed the secret Torture Memo 2.0. And then he wrote another secret memo, Torture Memo 3.0, which held that the recently passed Detainee Treatment Act-- which banned cruel, inhuman and degrading treatment-- did not affect the CIA's practices one bit.

It is well worth asking how many other secret opinions the Justice Department has produced during the Bush Administration that justified violations of the Constitution, federal statutes, the laws of war, and international human rights.

An essential component of the rule of law is transparency. The laws must be knowable, not only so that people can structure their behavior with fair warning, but also to prevent government officials from engaging in abuses of power. The Bush Administration has used the shibboleths of terrorism and national security to violate this basic principle.

The Administration said, "Trust us." And then this is what they did in secret.

Comments:

The legal philosophy of the maladministration, from beginning to end (as detailed by Charlie Savage in other contexts as well), can really be shortened to a very brief two-word brief:

"Make me."

Cheers,
 

The Administration said, "Trust us." And then this is what they did in secret.

And if anyone thinks now that the "secret" is out, there will be any shame, I refer you to John Rogers great post at the blog Kung Fu Monkey, L33T Justice.

We are faced with utterly shameless men. Cheney and the rest are looking our representatives right in the eye and saying "You don't have the balls to take down a government. You don't have the sheer testicular fortitude to call us lying sonuvabitches when we lie, to stop us from kicking the rule of law and the Constitution in the ass. You just don't. What's beyond that abyss -- what that would do to our government and our identity as a nation -- terrifies you too much. So get the fuck out of our way."
...
...
I cannot help but think that as Nixon walked to the chopper, somewhere in the darkened hallways of the White House Dick Cheney shook his head, spit, and whispered: "Pussy."

 

Despite the fact that Congress repeatedly passed legislation stating that it was illegal for U.S. personnel to engage in torture or cruel, inhuman and degrading treatment, the Justice Department repeatedly redefined the terms of these prohibitions so that the CIA could keep doing exactly what the Justice Department had authorized to do before. Gonzales treated all of these laws as if they made no difference at all, as if they were just pieces of paper.

I would strongly recommend Jack Goldsmith's excellent analysis in "Terror Presidency," where he bemoaned the fact that the general subjective terms used in human rights legislation do not have objective meanings from which the OLC or any other lawyer can reasonably provide advice to his client. In sum, Goldmsith noted (as I have in the past) that everyone has different ideas of what these terms mean.

Consequently, unless Professor Balkin or any other critic can offer objective definitions of "torture or cruel, inhuman and degrading treatment" which has some basis in law, I do not see any basis for the allegation that the OLC's opinions are contrary to the law. Absent objective definitions, the OLC's opinions as to what these terms mean are just as valid as anyone else's opinions.

I would suggest that a more legitimate critique is whether criminal legislation which uses subjective terms without common meanings is void for vagueness.
 

It seems like the President's most controversial activities (torture, wiretapping, DoJ controversy, rendition, enemy combatants, secrecy, preemptive war) all share a common theme: the expansion and unchecked application of inherent executive power. However, this President will not be in office forever (probably).

My three questions:

1. Is the expansion of executive power a partisan issue? In other words, can the general platforms of the Republican and Democratic parties be distinguished on the basis of their approach to the future of executive power?

2. Would any current Presidential candidates, regardless of party affiliation, act to reduce the scope and application of executive power?

3. If expanding executive power is the problem, and if a particular candidate or party appears committed to reducing executive power, then does it follow that that particular candidate or party deserves your vote?
 

Bart, you're arguing against clear cases from hard cases. "There is disagreement whether waterboarding is torture is, so we can use the rack."
 

jpe said...

Bart, you're arguing against clear cases from hard cases.

Not at all. Once you get past all the slant in the NYT article, the writer does manage to get to the nub of the issue that all of the situations are "hard cases" because no one knows what the law means.

Another revealing passage discusses the pressures on the OLC from the academic left on one side and the conservative legal community on the other. The sharp disagreement over what these laws mean between so many bright former judicial clerks pretty much demonstrates that these laws are too vague to use as anything else but partisan or ideological whips.
 

-- Torture Memo 3.0, which held that the recently passed Detainee Treatment Act-- which banned cruel, inhuman and degrading treatment-- did not affect the CIA's practices one bit. --

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My read of the DTA is that it endorsed the CIA's past and present practices relating to interrogation techniques. The statute has what appear to be conflicting provisions, but where the rubber meets the road, what the CIA is doing doesn't cross the newly-drawn statutory line.
 

cboldt, without conceding anything on practices such as hypothermia, you seriously mean to argue that waterboarding is neither cruel, nor inhuman, nor degrading?

I am genuinely puzzled at what those words would mean in that case. Please explain.
 

In law school future lawyers learn that a majority of legal concepts are subjective, unlike in the natural sciences, where the majority of concepts are objective. Based on this fact, the legal system provides a series of tests, equally subjective, that help determine the valid interpretation of the law.

In law school future lawyers (and in the school of life, in general, reasonable adults) learn that even if a rule is difficult to understand and, thus, difficult to adhere to, you cannot argue that such difficulty by itself justifies skipping it.

Do we have positive norms that address the issue of torture and cruel, inhuman and degrading treatment? Yes, they’ve been in force many decades. Do we have case law regarding such norms? Yes, that too. Does the scope of practices covered by the Torture Memo 1.0 exceed the limits set by the tests established in those positive norms and consolidated through case law? Some may try to defend that they don’t based on novel legal theories that haven’t passed judicial muster, but I haven’t read of a single independent expert in this area who cites a court decision that supports Yoo’s advice.

We’ll end up knowing what the Torture Memo 2.0 and 3.0 say exactly, but in the meantime, Bart, please try not to tread on your law school title and, while at it, abstain from arguing your positions in a way that no reasonable adult would do.
 

Bart DePalma wrote: "[U]nless Professor Balkin or any other critic can offer objective definitions of "torture or cruel, inhuman and degrading treatment" which has some basis in law, I do not see any basis for the allegation that the OLC's opinions are contrary to the law."

COMMENT: International human rights courts have been defining the international law prohibiting torture or CIDT for many years. One of the most important cases was Ireland v. UK, 25 Eur. Ct. H.R. (ser. A) (1978), in which the European Court of Human Rights held that stress positions, hooding, subjection to noise, deprivation of sleep, food, and drink constituted inhuman treatment in violation of the European Convention on Human Rights. Do any of these methods sound familiar?

Francisco Forrest Martin
 

Juan:

While it is sometimes difficult to objectively define the elements of a crime, such a definition is necessary if we are going to accuse someone of being a "war criminal" and seek to take his or her freedom, money and good name.

Most criminal statutes and jury instructions do a pretty good job of this. The current legislation attempting to generically define "torture" as the "intentional infliction of severe pain" does not provide an objective line between what is criminal and what is not because no one among the attorneys and war fighters has the same understanding of what this definition means. Thus, the current regime is obviously unworkable.

I agree with Professor Lederman's post below that Congress needs to describe in detail the individual interrogation techniques which it wants to be unlawful.
 

Francisco Forrest Martin said...

Bart DePalma wrote: "[U]nless Professor Balkin or any other critic can offer objective definitions of "torture or cruel, inhuman and degrading treatment" which has some basis in law, I do not see any basis for the allegation that the OLC's opinions are contrary to the law."

COMMENT: International human rights courts have been defining the international law prohibiting torture or CIDT for many years. One of the most important cases was Ireland v. UK, 25 Eur. Ct. H.R. (ser. A) (1978), in which the European Court of Human Rights held that stress positions, hooding, subjection to noise, deprivation of sleep, food, and drink constituted inhuman treatment in violation of the European Convention on Human Rights.


Thank you for the assist in proving my point that it is essentially impossible to draft a generic definition of what constitutes torture. Rather, the EU courts, in their self assumed legislative capacity, have done exactly what I recommended Congress do - detail individual interrogation techniques which are unlawful.

Of course, the opinion of the EU courts as to what EU treaties require is not legally enforceable here and appears to be less than wise guidance for our Congress in a number of particulars - such as the ridiculous prohibitions on hooding and being subjected to noise. It is because of nonsensical rulings like this that the EU governments actively cooperated with the US in rendering terrorists out of their countries.
 

-- you seriously mean to argue that waterboarding is neither cruel, nor inhuman, nor degrading? --

.

No. The point I was trying to make was as to the relationship between warterboarding, and the statutory language other than "cruel, inhuman, or degrading."

.

The recently passed DTA has drawn lines for prohibited conduct, that eventually reach 18 USC 1365 for a definition of "serious bodily injury."

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IOW, "torture" and "cruel and inhuman" have statutory definitions, and I believe the CIA techniques do not run afoul of the recently-passed statutory definitions.

.

The administration got exactly the language it lobbied for in this regard.
 

"Absent objective definitions, the OLC's opinions as to what these terms mean are just as valid as anyone else's opinions."

Yes. Absent an objective definition of what constitutes torture, the Argentine generals' definition is "just as valid" as Jacobo Timmerman's...

And absent an objective definition, "Bart"'s definition of "unreasonable searches", "due process", and "probable cause" are just as valid as the Supreme Court's, so ... my dears ... anything goes. It's who's got the guns (and the clubs), you know....

Cheers,
 

While it is sometimes difficult to objectively define the elements of a crime, such a definition is necessary if we are going to accuse someone of being a "war criminal" and seek to take his or her freedom, money and good name.

Why, heaven forbid such an unjust result. After all, the torturers have far more to lose than the torturees; their name, maybe their paychecks, and possibly even their gummint jobs. Compare that to the trifles the torturees are whining about....

Cheers,
 

Couldn't we agree that if the Spanish Inquistion used an "interrogation" method, that's prima facie evidence that the method is torture?

For example, the the toca (tortura del agua) surely anticipates waterboarding.

Oh, and we should always remember that the administration is operating under the carefully, and prayerfully crafted Theory Of We Get To Do Whatever the F*** We Want (also known as the theory of the unitary executive or, in the original German, fuhrerprinzip) and so it should come as no surprise that they are, in fact, doing whatever the f*** they want. There's no story here.
 

Two questions: How long did NYT hold onto this information & since it looks like DOJ has its own version of signing statements, just how much of this shadow govt will be left behid to continue when Cheney & Bush are pulled kicking and screaming from office?
 

Folks, when an attorney gives legal advice to a client, that advice is privileged as a basic matter of course. There is nothing nefarious about this privilege nor does legal advice constitute a "shadow government" because legal advice to the President is not governance. The President's subsequent orders which may follow or ignore the legal advice is governance which is subject to debate.
 

--when an attorney gives legal advice to a client, that advice is privileged as a basic matter of course. --

.

OLC Opinions <- unprivileged advice, given as a matter of fostering transparency in governance.
 

cboldt,

You beat me to it.

If the government is the will of the people, then legal opinions on what the government can do, as opposed to the individual who is the president, should be open information for the people to see.
 

In my mind the question is what we will do about this. I'm trying in my own humble way to gather support for Garret Keizer's suggestion in Harper's. We need a day of focus - Keizer calls it a general strike - on Election Day of this year. This is but the latest reason to think we need some call to account, a legal, historically legitimated way to make ourselves heard. I've been listing reasons on a blog I set up for this purpose (http://electionday2007.blogspot.com/) and will soon be posting some specific suggestions for the message of such a protest.

It's time to stop bemoaning that there is nothing we can do in the face of Bush's incompetence and criminal abuse of power. To those who ask what we can do, Keizer, in his essay says, "Well, we could do this." The protection of our democratic values falls heavily and utterly on us. Others have answered the call before, without email, the web, and the level of prosperity we now enjoy. What will you say when asked what you did during these perilous times?
 

On the matter of specifying techniques, Senator Kennedy just proposed legislation titled "Torture Prevention and Effective Interrogation," which would limit interrogation techniques to those specified in the Army Field Manual. Any technique not specifically okayed, is forbidden. This strikes me as the only practical approach to specifically limiting interrogation techniques, i.e., use of affirmative and limited approval rather than specific and limited prohibition.
 

Does anyone know where I can read this memo that everyone is commenting on?
 

note to John:

as of today, Congress is asking the same question.



To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.

~ Robert H. Jackson (former USAG and chief American prosecutor at Nuremberg)
 

cboldt/fraud guy:

Advice given to the President is confidence is privileged under attorney client or executive privilege unless it involves criminal activity or unless the President chooses to waive that privilege. The same applies to Congress.

In contrast, the President's executive orders constitute governance and are subject to oversight. Orders applying to classified matters are routinely classified themselves. However, Congress should be able to review them in closed session.

None of this is novel and has been SOP for government operations for decades if not centuries.
 

cboldt said...

On the matter of specifying techniques, Senator Kennedy just proposed legislation titled "Torture Prevention and Effective Interrogation," which would limit interrogation techniques to those specified in the Army Field Manual. Any technique not specifically okayed, is forbidden. This strikes me as the only practical approach to specifically limiting interrogation techniques, i.e., use of affirmative and limited approval rather than specific and limited prohibition.

While I strongly disagree with where the line is being drawn here, I agree that this kind of detail is necessary to create enforceable interrogation rules.

The spin in the title of the bill about providing "effective interrogation" is an obvious fig leaf against the testimony of CIA members about how much more effective their coercive techniques were in gathering timely and actionable intelligence which allowed them to roll up much of al Qaeda.

By all means, let the debate begin about what individual interrogation techniques the People are willing to use against terrorists. Let us start with all the techniques which are already in the public domain.
 

The "debate" will drag on while this Administration continues to torture people. Just as they continue destroying Iraq while the debate continues.

Bart wants a "lengthy debate" during which the tortures will continue unabated. How about a cease-torture order while debate continues? Or is the use of torture a "foreign Policy" matter? Or a military commander-in-chief thing?
Congress can't order it stopped?
 

Citing the IHRO is at best farcical. We should never, ever adopt any edicts from any so-called "human rights" organzations. They clearly hold sway with the fringe. One need only read the monotonous argument put forth by this rag of a paper. We do not torture....it's that simple. Black and white. To imply we do is nonsence.
If you can prove otherwise I would suggest you put forth an argument. And simply screaming or writing adolescent "torture memo" nonsence to pacify a particular contingency of "college" protesters...lol...does not make for serious debate. The real torture is the Times so-called news.
 

I can say torture too.....NYT (torture) Malkin(torture) CNN(torture) KOS(torture)
Hannity(torture) Limbaugh(torture) ABC CBS NBC(torture) Our pathetic government(torture)...on and on and on...Guess what..because I say it's torture does not mean its torture....what is is? They banned me from kos I hope I survive.
 

The spin in the title of the bill about providing "effective interrogation" is an obvious fig leaf against the testimony of CIA members about how much more effective their coercive techniques were in gathering timely and actionable intelligence <*cough*al-Libbi*cough> which allowed them to roll up much of al Qaeda<*hmmmm*where's-bin-Laden?*hmmmm*>.

Yet, strangely enough, there's people that firmly insist (when they have a different 'argument' that they'd like to advance) that the entirety of Iraq's a hellhole because of "al Qaeda in Iraq" and the whole place would be an Elysian garden of flower-throwing people if we'd just be allowed to "roll them up".... Go figger.

Cheers,
 

dartagnansblade:

We do not torture....it's that simple. Black and white.

Well, why didn't you just say so before? We could have saved ourselves the bother of thinking....

I would suggest you put forth an argument.

Wholly without irony.

Cheers,
 

Mr. DePalma:

Please go read the Ireland v. UK decision that details the interrogation techniques that the Eur. Ct. H.R. (which you mistakenly describe as an EU court) found in violation of the ECHR. Also, SCOTUS, the ICJ, Inter-Am. Cm. & Ct. H.R., and the Vienna Convention on the Law of Treaties require that meaning of arguably vague treaty provisions are to be construed in conformity with the rest of the law of nations, which includes European treaties. See, e.g., The Antelope, Namibia Advisory Opinion. And, of course, the Charming Betsy Rule also requires the construction of federal statutes (e.g., War Crimes Act of 1996) to be in conformity with the law of nations.

Francisco Forrest Martin
 

Arne Langsetmo said "there's people that firmly insist"

Your argument I suppose...please enlighten us with some "people"

Can you?
 

Also leave the cherry picking to those who know how to do it..again I say....If you can prove otherwise I would suggest you put forth an argument.
 

The tactic of focusing on torture to the exclusion of "cruel and inhuman" and "intentionally causing great suffering" has been, and will continue to be a very effective device for controlling debate.

.

But even so, I note the statutory definition of "torture" appears to be sound support for "we do not torture," for an interrogator who routinely uses waterboarding, stress positions, and prolonged exposure to elevated and depressed temperatures. Read and understand the elements of the crime of torture.

.

Lame allegory: If "speeding" is statutorily defined as exceeding the posted limit by 100 MPH, and I am going 80 in a residential 20 mph zone, I can say I wasn't speeding. It defies common sense, but that's what the law says.
 

None of this is novel and has been SOP for government operations for decades if not centuries.

And where has "business as usual" and "SOP" gotten us? Aye, there's the rub. Protecting the status quo because it is the status quo is a classic recipie for failure. Change is necessary for growth and improvement. If we fail to change that SOP, we end up with a rank, fetid swamp, filled with bracken and pestilence.

Oops, too late.
 

I agree that this kind of detail is necessary to create enforceable interrogation rules.

The law on the books forbids conduct that clearly runs afoul of its provisions. Again, you're talking about the fuzzy middle, and it may be difficult to administer the law in those areas. The problem with the Gonzalez memo is that it OKs conduct that very clearly violates the statute.
 

Couldn't we agree that if the Spanish Inquistion used an "interrogation" method, that's prima facie evidence that the method is torture?

I hope I'm not the only one who thought of the comfy chair when I read this.

On a more serious note, I wonder if others share my view that the very existence of a "debate" such as Bart DePalma envisions - that is, politicians running for office on platforms of exactly what procedures they would and wouldn't use against suspected terrorists - might be just as degrading for us as a nation as the practice of torture itself.
 

etooming said...

The "debate" will drag on while this Administration continues to torture people.

I do not care whether the debate is long or short. However, I would love to see Kennedy & Co argue why we should be giving up these interrogation techniques and see what the People think of this argument and make their own decision.

Run footage of 9/11 for those who have forgotten. Then, have the CIA testify how they broke the architect of 9/11 in less than 2 minutes of waterboarding and rolled up several al Qaeda cells and prevented a series of follow on al Qaeda attacks. THEN, let's see how the People want to proceed in the future.

I have no fear of an open debate. Why do you?
 

steve said...

On a more serious note, I wonder if others share my view that the very existence of a "debate" such as Bart DePalma envisions - that is, politicians running for office on platforms of exactly what procedures they would and wouldn't use against suspected terrorists - might be just as degrading for us as a nation as the practice of torture itself.

What is degrading about having the People debate how we treat unlawful enemy combatants during a war? Confronting the tough issues is precisely why the People elect representatives in our Republic. We better make some decisions sooner rather than later because the enemy has been warring on us for nearly 15 years now.

We had no trouble dealing with unlawful enemy belligerents during WWII. Was that generation truly that much greater than this one?
 

Re: all those folks (known and unknown) rolled out of US detention facilities (known and unknown) in body bags . . .

experiments in "dialing in" the parameters of the Bybee Memo -- authored by our august DOJ and -- that locus of "domestic enemies of the US Constitution" -- the White House.

how many survive simply with organ failure, or broken bones, or shattered souls?

There are none so blind as those who will not see.
 

Professor Balkin,

I've just left a similar message to this one in a post by Sandy Levinson.

Yet again, we see blatant disregard for constitutional norms, treaty obligations, US law and morality. Yet nowhere here do I see you or your colleagues drawing the necessary conclusion: impeachment.

You may have subtle reasons for preferring other remedies, but this administration scoffs at such remedies. It is in its very nature, in its DNA, a proudly systematic challenge to the Constitution and the rule of law.

It is high time you and other legal scholars acknowledge that, and take sides for impeachment, while there's still a bit of time to do so and a bit of honor to salvage for the American legal profession.
 

It's amusing that Bart thinks his side would conclusively win an open debate on the subject of waterboarding, and yet no one in the Republican Party seems interested in making his proposed case at all.

Could it be that they know it wouldn't be anything close to the slam-dunk case that Bart fantasizes about? Or could it be that Karl Rove simply isn't a ruthless enough campaigner?
 

Among the deaths listed of the 108 as of June 2005, 29 were attributed to natural causes or accidents; 18 were deemed “justified homicide” or “suspected justified homicide;” only 23 were being “investigated as involving criminal homicide or abuse by U.S. personnel.” Among those 23, just 3 were explicitly attributed to murder, with the rest still under investigation or involving lesser charges such as dereliction of duty, maltreatment, and involuntary manslaughter. (By the way, the U.S. Army, Navy, and other government agencies were able to provide this information to the ACLU because, unlike the ACLU, ahem, they did not shred these sensitive records.)
 

I have no fear of an open debate. Why do you?

But you were just arguing for secret discussion of the legality of these programs...

And, show movies of the tortures. Show pictures of the innocents who were tortured because of mistaken identity, or no identity, and show their scars, fears, and experiences.

Show a rendition, what happens to a person captured and sent to a "friendly" torturing country.

That would be the start of an "open" debate, with full information.

And as to the "rolling up" of cells, I cannot recall any news item where the administration trumpeted the effectiveness of a specific torture on a specific detainee and what it revealed, and the further captures that were made. Can you provide specific cites, or is this along the lines of the anonymous official showing a powerpoint in Iraq to selected journalists, purporting to confirm the fact of Iranian manufacture of IEDs.
 

Steve said...

It's amusing that Bart thinks his side would conclusively win an open debate on the subject of waterboarding, and yet no one in the Republican Party seems interested in making his proposed case at all.

By and large, politicians are cowards, regardless of party. The GOP congress fears the hammering in the Dem media they will get for supporting "torture." However, when talking to the voters, nearly every single GOP presidential candidate supported using coercive methods to thunderous applause. Contrast that with the verbal gymnastics the Dem candidates use to avoid talking directly about this issue. (This is one of the reasons why they dodge Fox News debates).

So, yes, I am confident that a majority of voters feel like I do on this particular issue. If I am wrong, I can live with that as well. However, I am tired of this debate being largely limited to lawyers and bureaucrats. Let us get it out into the open and make a decision.
 

Fraud Guy said...

BD: I have no fear of an open debate. Why do you?

But you were just arguing for secret discussion of the legality of these programs...


One has nothing to do with the other. The opinions of the lawyers (despite the rather high opinion many of us seem to have for ourselves) are irrelevant. The only people who matter in this debate are the ones we elected to make the decisions - the President and Congress.

Ask them where they stand and make them defend their positions. Don't play cowardly games of sniping at their attorneys.

And, show movies of the tortures.

If you show the terrorist murders, I have no problem showing the interrogations of those terrorists.

Show pictures of the innocents who were tortured...

Are you seriously going to argue against an interrogation technique because it may be mistakenly used against a civilian? You can also make that specious argument against the entire criminal justice system and the Army Interrogation Manual.

And as to the "rolling up" of cells, I cannot recall any news item where the administration trumpeted the effectiveness of a specific torture on a specific detainee and what it revealed, and the further captures that were made.

CIA had given general testimony in public and specific testimony in closed session. None of the briefed representatives or senators claimed that they were lying in public based on what they heard in private.

...or is this along the lines of the anonymous official showing a powerpoint in Iraq to selected journalists, purporting to confirm the fact of Iranian manufacture of IEDs.

Anonymous officials? The briefers are identified Army officers showing the IDs of the captured Iranians, photos of their weapons and photos of the resulting damage to our equipment. The only thing they did not show is the torn apart bodies of the soldiers who were attacked with these weapons.

I sure as hell hope our President is hitting back at the Iranian terrorists which are murdering our troops in an act of war. No one here seems to give a damn about our troops. Instead, the general consensus appears to be that we need to protect the Iranians!

Can you imagine how infuriating that is to the soldiers on the line? Believe me that they would have far more pointed language for you than I have posted today.
 

Can you imagine how infuriating that is to the soldiers on the line? Believe me that they would have far more pointed language for you than I have posted today.

If they're not infuriated that their lives are being pissed away by a bunch of lying scumbags like you, I really don't care how angry they are about my views.
 

Dear Mr. DePalma
It's very disingenuous to argue that no definitions of torture exist when a quick Google search produces many. However, if you wish an exhaustive catalog of painful practices to be banned, may I make the modest proposal of experimenting with different techniques on dartagnansblade and abide with his direct experience.
If you wish to explode the myth of torture as an effective interrogation method, please Google "Major Sherwood P. Moran" and learn about his intelligence gathering techniques, which were able to produce complete order-of-battle information 24hrs in advance in the Pacific Theater during WWII.
 

Hey Bart is pretty free with his "Act of War" rhetoric considering the millions of lives at stake.with GWB holding the match....
 

I sure as hell hope our President is hitting back at the Iranian terrorists which are murdering our troops in an act of war. No one here seems to give a damn about our troops. Instead, the general consensus appears to be that we need to protect the Iranians! Can you imagine how infuriating that is to the soldiers on the line? Believe me that they would have far more pointed language for you than I have posted today.

Bart, big, flaming strawman here. I mean huge. I want to protect our troops. I want them home. IIRC, I saw the independant poll that had about 70% of the troops saying we needed to pull out of Iraq within a year--in 2005. That would be supporting the troops. Many high level generals have stated that we should abide by torture restrictions, because of potential blowback to our soldiers. That is supporting the troops.

And the briefers originally requested anonymity for their presentation. Look up the original press reports.

And now that you are being so open (except when you're not), let's discuss the slave labor being used to build "Fortress America" in Baghdad, and the actual profits of Blackwater, Halliburton, et al. to let the people decide.

You may not be as happy with the results of that.
 

At a certain point, it becomes absurd to call any of this "law" or "legal analysis." I think the Bush regime has really brought me around to lon Fuller's way of thinking -- i.e., that when a legal order becomes so thorougly manipulated and corrupted, when a regime issues self-justifying correctives or simply creates a parallel system of secret laws and "legal opinions" that simply make a hash out of the public law, we really no longer have a legal system.
In his penetrating essay "Positivism and Fidelity to Law," Fuller (no wooly-headed Bolshevik, he) recounted the "legal" devices favored throughut the Nazi regime, all of which are disgustingly familiar to any student of the Bush adminsitration. Prominent among them were "the retroactive statute curing past irregularities" (think of the MCA) and secret enactments which purported to make the worst abominations legal (think of all the torture memos, the NSA surveillance authorizations, etc.) -- enactments that took the form of instructions to those administering the law, or even simple orders from the Fuhrer himself (think of presidential determinations that certain persons are "enemy combatants"). As Fuller famously remarked "surely there can be no greater legal monstrosity than a secret statute."
The taboo against comparisons to the Nazis notwithstanding, it is striking that I can find no better analogue to the techniques of the current adminsitration than Fuller's description of the "legal system" of the Nazis.
Fuller's wrap up of the process by which the abominable became normalized within the legal system is altogether too familiar-sounding:
"The exploitation of legal forms started cautiously and became bolder as power was consolidated. The first attacks on the established order were on ramparts which, if they were manned by anyone, were manned by lawyers and judges. These ramparts fell almost without a struggle."
 

I am glad to see someone else has gone after Bart on his ridiculous contention that it is impossible to define torture.

I would only add two things here:

1. OLC opinions are not covered by lawyer-client privilege against congressional inquiry, for the simple reason that the GOVERNMENT, not the President, is the OLC's client. If the President asked his PERSONAL LAWYER to opine, that would be privileged.

2. In addition to the international law sources cited above (which Bart ignores because he hates international law), there are plenty of domestic law sources defining torture, including cases interpreting 28 USC 1350 and the Torture Victim Protection Act, cases interpreting statutes prohibiting torture, and cases imposing sentencing enhancements for torture.

3. Apparently, Bart thinks it is illegitimate for judges to apply broad statutory definitions to specific conduct (as with the torture statute and specific methods of interrogation). This is a truly radical claim; it is essentially being opposed to the judicial function entirely.
 

Dilan said...

1. OLC opinions are not covered by lawyer-client privilege against congressional inquiry, for the simple reason that the GOVERNMENT, not the President, is the OLC's client. If the President asked his PERSONAL LAWYER to opine, that would be privileged.

There is no collective "government." Article II makes the President, not the government in general, the sole executive. The attorneys in the executive work for the President, advise the President, and owe the President not only attorney client privilege, but also executive privilege. Congress enjoys a similar privilege with their attorneys.

2. In addition to the international law sources cited above (which Bart ignores because he hates international law), there are plenty of domestic law sources defining torture, including cases interpreting 28 USC 1350 and the Torture Victim Protection Act, cases interpreting statutes prohibiting torture, and cases imposing sentencing enhancements for torture.

No court has ever offered an objective definition for "torture." Rather, they take the subjective term as an invitation to apply their own opinions of what constitutes torture just as they apply their own opinions of what constitutes "cruel and unusual" punishment.

Congress should not have ducked their Article I duty to set specific rules for captures and pawned it off on the Judiciary. This is a Republic, not a dictatorship of unelected lawyers in black robes or in the bowels of the bureaucracy.
 

There is no collective "government." Article II makes the President, not the government in general, the sole executive. The attorneys in the executive work for the President, advise the President, and owe the President not only attorney client privilege, but also executive privilege. Congress enjoys a similar privilege with their attorneys.

No, Bart. The analogous attorneys to those that advise Congress are the White House Counsel's office. They represent the office of the Presidency in the same sense that the Congressional counsels represent the Congress.

The DOJ, by contrast, represents the United States of America, not the President. (Indeed, if the DOJ were merely the President's lawyers, there wouldn't be a need for a White House Consel.)

And your unitary executive arguments notwithstanding, it is perfectly clear that Congress has the power to create an agency of lawyers within the executive branch which does not represent the President but rather the government.

I don't opine about when the President can assert executive privilege. But if the President wants a confidential legal opinion that he can shield from congressional scrutiny, he needs to go to lawyers that represent him or his office, and not to the lawyers that Congress empowered to represent the federal government.

No court has ever offered an objective definition for "torture." Rather, they take the subjective term as an invitation to apply their own opinions of what constitutes torture just as they apply their own opinions of what constitutes "cruel and unusual" punishment.

Bart, that's what courts do. Do you want to repeal Marbury v. Madison? Get rid of the common law?

Congress passes law. Law is broad and general. Courts determine what fits within the law and what doesn't.

Indeed, are you contending that the judiciary has no legitimate power to determine whether particular punishments are cruel and unusual?

I think you've argued yourself into a box here, and you don't just want to admit that maybe you needed to take the time to learn what the law really provides vis-a-vis torture and that some people know more about this particular subject than you do.
 

Dear Mr. DePalma,

From a previous post:

The Minds Limit Today

In Jean Amery's, The Minds Limit, his capture and descent into torture by German Nazi’s, starts by pointing out that his torturers showed no “banality of evil” in their faces. First there is the "laugh" and then the "first blow". The prisoner then realizes that they are "helpless". Lost is the “trust in the world.” Certainly there is no “mutual aid in nature.” No. It is time for the “business room.” But before describing his own torture the author makes “good on a promise I gave.” Not that they where not specialists in torture, but more so his conviction that “torture was the essence of Nationalist Socialism – more accurately stated, why it was precisely in torture that the Third Reich materialized in all the density of its being.” I ask you dear citizens should we also "codify" that the detainees at Camp Xray can also be children as recently reported in the news? Not only does that sound slightly like the rule of antiman but I do believe antichild included. And if that is so then the rule practiced as such has “expressly established it as a princple.” So just what else in "essence" does go on at Camp Xray – "tricks"? Plead mercy, pray tell? Refuse Himmlers offer for a Certificate of Maturity in History I would suggest. Nay, to forsake the Constitution and be depraved of our humanity would be more painful in the end Mr Rumsfeld. Slavery to torture is all you will get. Go tell that to the Marines Mr. Rumsfeld after you have tendered your resignation.

I am Citizen Michael John Keenan

Congratulations Mr. DePalma you just won a Certificate of Maturity in History!
 

dilan said...

BD: There is no collective "government." Article II makes the President, not the government in general, the sole executive. The attorneys in the executive work for the President, advise the President, and owe the President not only attorney client privilege, but also executive privilege. Congress enjoys a similar privilege with their attorneys.

No, Bart. The analogous attorneys to those that advise Congress are the White House Counsel's office. They represent the office of the Presidency in the same sense that the Congressional counsels represent the Congress.

The DOJ, by contrast, represents the United States of America, not the President.


The President represents the United States of America as the sole executive. The DOJ works for and is subordinate to the President. If the President requests private legal advice from his or her AG, the client is the President and not the government in general.

(Indeed, if the DOJ were merely the President's lawyers, there wouldn't be a need for a White House Consel.)

Funny, Article II does not place a limit on the number of attorneys who may provide legal advice to the President.

And your unitary executive arguments notwithstanding, it is perfectly clear that Congress has the power to create an agency of lawyers within the executive branch which does not represent the President but rather the government.

If Congress uses its N&P power to hire attorneys to assist the President in exercising his executive power, they are subordinate to the President as the sole executive. Congress has no Article I executive power and cannot create an independent executive legal agency which works for someone else except for the President.

Of course, an attorney can have multiple clients, but he or she owes each of them attorney client privilege. Congress can ask the AG for legal advice the same as the President can. However, just because Congress can also ask the AG for legal advice does not mean that it can strip the President of his or attorney client privilege and demand that the AG tell them what he advised the President.

BD: No court has ever offered an objective definition for "torture." Rather, they take the subjective term as an invitation to apply their own opinions of what constitutes torture just as they apply their own opinions of what constitutes "cruel and unusual" punishment.

Bart, that's what courts do. Do you want to repeal Marbury v. Madison? Get rid of the common law?


There are no federal common law crimes. They are all statutory.

Congress passes law. Law is broad and general. Courts determine what fits within the law and what doesn't.

We are not talking about the unconstitutional delegations of power to an executive bureaucracy. Criminal laws are by necessity much more specific than civil law because the defendant's life and liberty are at stake.

Indeed, are you contending that the judiciary has no legitimate power to determine whether particular punishments are cruel and unusual?

Should and could are two different questions

Of course, the courts could perform judicial review to interpret the Constitution or a statute..

However, the purpose of criminal law is to place citizens on notice of what is and is not permitted so they can act accordingly. Citizens should not be placed in criminal jeopardy because a court interprets a vague statute to prohibit conduct after the fact.
 

If Congress uses its N&P power to hire attorneys to assist the President in exercising his executive power, they are subordinate to the President as the sole executive. Congress has no Article I executive power and cannot create an independent executive legal agency which works for someone else except for the President.

Bart, your theory got one vote on the Supreme Court, in Morrison v. Olson

In the real world, Congress has full power to create executive branch agencies full of lawyers which are not subject to Presidential control.

In any event, that's not even the issue here-- the DOJ is under Presidential control; the issue here is that the President is not its "client". Rather, the DOJ represents the United States and the White House Counsel represents the executive office of the Prsident.

There are no federal common law crimes. They are all statutory.

In the sense that there must be a statute, sure. But this doesn't mean what you are saying it means. Indeed, Congress must pass a statute, which might say, for instance, that no person may provide material support for a designated terrorist organization.

But then, what constitutes "material support"? Well, the courts decide that, Bart, pursuant to their common law rulemaking power to interpret federal statutes and to develop rules for their construction.

If you think the torture statute is somehow illegitimate or not subject to judicial interpretation, you must think the same about the material support statute which has put a lot of terrorists behind bars, right?

More likely, you are blowing smoke.

Criminal laws are by necessity much more specific than civil law because the defendant's life and liberty are at stake.

The material support statute is not specific. Neither is the treason statute (levying war against the United States or adhering to its enemies, giving them aid and comfort). Or how about the general federal conspiracy statute (conspiring to commit any offense against the United States or to defraud the United States)? My copy of USCS has 661 categories of annotations for what constitutes "conspiring" and "defrauding the United States". How about the general contempt of court statute (misbehavior of any person in a court's presence)? You won't be surprised to know there is quite a bit of judge-made authority as to what constitutes "misbehavior". Obscenity statutes, famously, hew to the Miller / Paris Adult Theater test and prohibit patently offensive displays of sexual content that appeal to the prurient interest and, taken as a whole, lack serious artistic or social value. These statutes have routinely been held constitutional by the Supreme Court, despite the fact that it is up to the courts to determine what the heck those terms mean.

Again, at this point I think you just dug a hole for yourself and you can't get out of it.

However, the purpose of criminal law is to place citizens on notice of what is and is not permitted so they can act accordingly. Citizens should not be placed in criminal jeopardy because a court interprets a vague statute to prohibit conduct after the fact.

That is clearly required by the Fifth Amendment (ironically, the principle is judge-made law as the provision just prohibits the deprivation of liberty without due process of law).

All these statutes have passed muster under the Fifth Amendment. (See, e.g., US v. Derezinski, 8th Cir. 1991; US v. Turkish, SDNY 1978) Provisions aren't void for vagueness just because they are general and require interpretation by courts.

Again, I think you are just cornered here. Torture, like many other federal crimes, is defined in general terms by a statute and interpreted through governing caselaw. It has a legal meaning, and the only reason some of us are pretending it doesn't is because that serves the interests of the Bush Administration.
 

"The President represents the United States of America as the sole executive...."

Better in the original French:

"L'État, c'est moi...."

Cheers,
 

Citizens should not be placed in criminal jeopardy because a court interprets a vague statute to prohibit conduct after the fact.

Actually, this is one of the jobs that courts do: Determine whether a law is so vague as to not provide sufficient notice to any potential malfeasors that their contemplated course of action is illegal. It is the courts that do this enquiry (and they publish their decisions in opinions, and may strike down laws for vagueness). And I shouldn't have to be explaining this either ... after all, people here are by and large educated in the way the law works. Oh, yeah, forgot; someone's tossing curveballs here and hoping people will go chase after them ... sorry, folks, forgive me. I'll try and resist temptation in the future.

Cheers,
 

The President represents the United States of America as the sole executive. The DOJ works for and is subordinate to the President. If the President requests private legal advice from his or her AG, the client is the President and not the government in general.


But, as Dilan pointed out, if the President wanted an opinion for private legal advice, he can turn to the White House Counsel, or a private attorney for that advice (IIRC, Clinton did this during his impeachment proceedings). Using the DOJ as his private counsel may intentionally be creating a conflict of interest.

By extending this logic, the entire government bureaucracy is there for the President's personal use. Now we're getting much closer to understanding Sandy Levinson's opinion that the current Presidency is dictatorial in nature, which you seem to object to only on technical grounds anymore.
 

I expect this will be discussed later, but I did want to point out that Bart is wrong on the facts as well as the law. In WWII interrogators didn't need to lay hands on their prisoners.

I have no doubt that Bart will come up with something, but I advise giving it a rest. Pounding the table when the law and the facts are against you will only get you a straightjacket and you'd probably prefer something less confining.
 

Link fixed. Sorry.
 

Fort Hunt's Quiet Men break silence on WWII

Those honorable men from WWII explain how they treated prisoners back then. They did not resort to torture. That would have lowered us to the level of the Nazis or Japanese. We are better than that. Under Bush we can no longer hold the high ground. Probably for our lifetimes. Maybe forever.

The sad thing is that torture doesn't even work. Those immoral monster who occupy the White House have dragged all of us with them to hell. They authorized torture in our name IN SPITE of congress's explicit legislation prohibiting torture. They did in secret without consulting congress. They won't get away with it. Read "The Terror Presidency" by Jack Goldsmith.
 

For any lawyers: why doesn't US Code sect 18 seem to come up in these discussions? For those unfamiliar it reads in part:

TITLE 18 > PART I > CHAPTER 113C > § 2340

§ 2340. Definitions

As used in this chapter—
(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—
(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and
(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

It seems to me that while vague, the definitions, by including the simple "threat" as a violation, would seem to draw the line such that the presumption is that a disputed act would be torture and the burden would be to prove that it is simply "incidental to lawful sanctions." In fact, the definition lies in the perception of the prisoner - his mental harm or the sense of threat. This may not be good law, but it seems to be the law, in which case activities apparently OK'd are clearly in violation. Why else would there be such an effort to conduct these interrogations in places that at least arguably not "the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States"?
 

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.
Most people who develop
mesothelioma have worked on jobs where they inhaled asbestos particles, or they have been exposed to asbestos dust and fiber in other ways. Washing the clothes of a family member who worked with asbestos can also put a person at risk for developing Mesothelioma Unlike lung cancer, there is no association between mesothelioma and smoking but smoking greatly increases risk of other asbestos induced cancer.Compensation via
Asbestos funds or lawsuits is an important issue in
mesothelioma The symptoms of
mesothelioma include shortness of breath due to pleural effusion (fluid between the lung and the chest wall or chest wall pain, and general symptoms such as weight loss. The diagnosis may be suspected with chest X-ray and CT scan and is confirmed with a biopsy (tissue sample) and microscopic examination. A thoracoscopy inserting a tube with a camera into the chest) can be used to take biopsies. It allows the introduction of substances such as talc to obliterate the pleural space (called pleurodesis, which prevents more fluid from accumulating and pressing on the lung. Despite treatment with chemotherapy, radiation therapy or sometimes surgery, the disease carries a poor prognosis. Research about screening tests for the early detection of mesothelioma is ongoing.
Symptoms of mesothelioma may not appear until 20 to 50 years after exposure to asbestos. Shortness of breath, cough, and pain in the chest due to an accumulation of fluid in the pleural space are often symptoms of pleural
mesotheliomaSymptoms of peritoneal
mesothelioma include weight loss and cachexia, abdominal swelling and pain due to ascites (a buildup of fluid in the abdominal cavity). Other symptoms of peritoneal
mesothelioma may include bowel obstruction, blood clotting abnormalities, anemia, and fever. If the cancer has spread beyond the mesothelium to other parts of the body, symptoms may include pain, trouble swallowing, or swelling of the neck or face.
These symptoms may be caused by
mesothelioma or by other, less serious conditions.
Mesothelioma that affects the pleura can cause these signs and symptoms:
chest wall pain
pleural effusion, or fluid surrounding the lung
shortness of breath
fatigue or anemia
wheezing, hoarseness, or cough
blood in the sputum (fluid) coughed up hemoptysis
In severe cases, the person may have many tumor masses. The individual may develop a pneumothorax, or collapse of the lung The disease may metastasize, or spread, to other parts of the body.
Tumors that affect the abdominal cavity often do not cause symptoms until they are at a late stage. Symptoms include:
abdominal pain
ascites, or an abnormal buildup of fluid in the abdomen
a mass in the abdomen
problems with bowel function
weight loss
In severe cases of the disease, the following signs and symptoms may be present:
blood clots in the veins, which may cause thrombophlebitis
disseminated intravascular coagulation a disorder causing severe bleeding in many body organs
jaundice, or yellowing of the eyes and skin
low blood sugar level
pleural effusion
pulmonary emboli, or blood clots in the arteries of the lungs
severe ascites
A
mesothelioma does not usually spread to the bone, brain, or adrenal glands. Pleural tumors are usually found only on one side of the lungs
Diagnosing
mesothelioma is often difficult, because the symptoms are similar to those of a number of other conditions. Diagnosis begins with a review of the patient's medical history. A history of exposure to asbestos may increase clinical suspicion for
mesothelioma A physical examination is performed, followed by chest X-ray and often lung function tests. The X-ray may reveal pleural thickening commonly seen after asbestos exposure and increases suspicion of
mesothelioma A CT (or CAT) scan or an MRI is usually performed. If a large amount of fluid is present, abnormal cells may be detected by cytology if this fluid is aspirated with a syringe. For pleural fluid this is done by a pleural tap or chest drain, in ascites with an paracentesis or ascitic drain and in a pericardial effusion with pericardiocentesis. While absence of malignant cells on cytology does not completely exclude
mesothelioma it makes it much more unlikely, especially if an alternative diagnosis can be made (e.g. tuberculosis, heart failure
If cytology is positive or a plaque is regarded as suspicious, a biopsy is needed to confirm a diagnosis of
mesothelioma A doctor removes a sample of tissue for examination under a microscope by a pathologist. A biopsy may be done in different ways, depending on where the abnormal area is located. If the cancer is in the chest, the doctor may perform a thoracoscopy. In this procedure, the doctor makes a small cut through the chest wall and puts a thin, lighted tube called a thoracoscope into the chest between two ribs. Thoracoscopy allows the doctor to look inside the chest and obtain tissue samples.
If the cancer is in the abdomen, the doctor may perform a laparoscopy. To obtain tissue for examination, the doctor makes a small incision in the abdomen and inserts a special instrument into the abdominal cavity. If these procedures do not yield enough tissue, more extensive diagnostic surgery may be necessary.
There is no universally agreed protocol for screening people who have been exposed to
asbestosScreening tests might diagnose mesothelioma earlier than conventional methods thus improving the survival prospects for patients. The serum osteopontin level might be useful in screening asbestos-exposed people for
mesotheliomaThe level of soluble mesothelin-related protein is elevated in the serum of about 75% of patients at diagnosis and it has been suggested that it may be useful for screening. Doctors have begun testing the Mesomark assay which measures levels of soluble mesothelin-related proteins (SMRPs) released by diseased mesothelioma cells
Incidence
Although reported incidence rates have increased in the past 20 years, mesothelioma is still a relatively rare cancer. The incidence rate is approximately one per 1,000,000. The highest incidence is found in Britain, Australia and Belgium: 30 per 1,000,000 per year. For comparison, populations with high levels of smoking can have a lung cancer incidence of over 1,000 per 1,000,000. Incidence of malignant mesothelioma currently ranges from about 7 to 40 per 1,000,000 in industrialized Western nations, depending on the amount of asbestos exposure of the populations during the past several decades. It has been estimated that incidence may have peaked at 15 per 1,000,000 in the United States in 2004. Incidence is expected to continue increasing in other parts of the world. Mesothelioma occurs more often in men than in women and risk increases with age, but this disease can appear in either men or women at any age. Approximately one fifth to one third of all mesotheliomas are peritoneal.
Between 1940 and 1979, approximately 27.5 million people were occupationally exposed to asbestos in the United States.[ Between 1973 and 1984, there has been a threefold increase in the diagnosis of pleural mesothelioma in Caucasian males. From 1980 to the late 1990s, the death rate from mesothelioma in the USA increased from 2,000 per year to 3,000, with men four times more likely to acquire it than women. These rates may not be accurate, since it is possible that many cases of mesothelioma are misdiagnosed as adenocarcinoma of the lung, which is difficult to differentiate from mesothelioma.
Working with asbestos is the major risk factor for mesothelioma. A history of asbestos exposure exists in almost all cases. However, mesothelioma has been reported in some individuals without any known exposure to asbestos. In rare cases, mesothelioma has also been associated with irradiation, intrapleural thorium dioxide (Thorotrast), and inhalation of other fibrous silicates, such as erionite.
asbestos
is the name of a group of minerals that occur naturally as masses of strong, flexible fibers that can be separated into thin threads and woven.
asbestos
has been widely used in many industrial products, including cement, brake linings, roof shingles, flooring products, textiles, and insulation. If tiny asbestos particles float in the air, especially during the manufacturing process, they may be inhaled or swallowed, and can cause serious health problems. In addition to mesothelioma, exposure to asbestos increases the risk of lung cancer, asbestosis (a noncancerous, chronic lung ailment), and other cancers, such as those of the larynx and kidney.
The combination of smoking and
asbestos exposure significantly increases a person's risk of developing cancer of the airways (lung cancer bronchial carcinoma). The Kent brand of cigarettes used
mesothelioma in its filters for the first few years of production in the 1950s and some cases of
mesothelioma have resulted. Smoking modern cigarettes does not appear to increase the risk of mesothelioma.
Some studies suggest that simian virus 40 may act as a cofactor in the development of mesothelioma.
Asbestos was known in antiquity, but it wasn't mined and widely used commercially until the late 1800s. Its use greatly increased during World War II Since the early 1940s, millions of American workers have been exposed to asbestos dust. Initially, the risks associated with
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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