Night and Fog Revisited 

Is Harriet Miers a closet sadist?

NEW YORK--On December 7, 1941, Adolf Hitler ordered that political prisoners and captured enemy troops disappear without a trace. Notification letters to governments or next of kin were prohibited. No records of their destinations or whether or not they had been executed were kept. One day they were living human beings with an address and a file. The next: not.

Field Marshall Wilhelm Keitel, supreme chief of the German armed forces, explained the thinking behind the Nazis' "Night and Fog" (the term comes from Goethe) decree: "Efficient and enduring intimidation can only be achieved ... by measures by which the relatives of the criminals do not know the fate of the criminals ... These measures will have a deterrent effect because the prisoners will vanish without a trace and no information may be given as to their whereabouts or their fate."

Anyone who doubts the extravagant pain of not knowing what happened to a loved one should talk to Natalee Holloway's parents.

Night and Fog came to the United States when federal agencies built and filled a global, ad hoc network of prisons and concentration camps during the months following 9/11, and began filling it with Muslims of varying status. Officials promising to update lapsed visas lured foreign-born residents to immigration offices and arrested them when they showed up. Captured Taliban soldiers, stripped of their rights under the Geneva Conventions, were thrown together with civilian shopkeepers sold by local warlords for bounties to the CIA in Afghanistan, to whom were added anti-communist rebels from China and democracy activists from Pakistan. Some were shipped to Cuba, where many were tortured, some to death. Others were delivered for "extraordinary rendition" via covert CIA jets to countries reputed for their pain-inflicting expertise, including Syria, Yemen and Uzbekistan. No one knows what happened to them.

Four years after 9/11, the U.S. government still refuses to release information about the disappeared. We do not know how many there are, where they are being held, how many are dead and alive, or even their names. The vanished have access to neither their families nor legal representation. They cannot send or receive mail or packages. Because there was no evidence against them, none have been charged with a crime. But catching terrorists was never the purpose of America's new Night and Fog policy. The goal was to instill fear, particularly among Muslims. It has also worked with other "enemies of the state": since 9/11, "See you in Gitmo" has become a standard joke among activists on the left.

The legal cover for the Bush Administration's updating of Night and Fog comes courtesy of then-White House Counsel Alberto Gonzales, since promoted to attorney general. In his January 22, 2002, memo, for example, Gonzales repeatedly twisted the facts in order to obtain the result Bush desired.

Gonzales' contradictory linguistic contortions, here to argue that the Taliban were not covered by Geneva and could thus be vanished into thin air because they were not a viable government, would be comical if not for the man's chilling willingness to suspend intellectual honesty along with fundamental human rights: "It is unclear whether the Taliban militia ever fully controlled most of the territory of Afghanistan. At the time the United States air strikes began, at least 10 percent of the country, and the population within those areas, was governed by the Northern Alliance."

Since when does 90 percent, or nearly 90 percent, fail to qualify as "most"?

Harriet Miers, Bush's nominee to succeed Sandra Day O'Connor on the Supreme Court, replaced Gonzales in November 2004. Has she ever questioned Gonzales' extreme and bizarre legal opinions justifying the torture, indefinite detention and disappearing of countless innocent people? We don't know. Her legal opinions have yet to be released and Senate Republicans, in keeping with the Bush administration's obsession with keeping the people's business secret from the people, say they'll fight to keep them shrouded by the night and fog.

We know that Miers has chosen not to issue a full-fledged rebuttal of Gonzales' disappear-'em-and-torture-'em philosophy, which remains in full force at Abu Ghraib, Bagram, Guantánamo, Camp Mercury and other giant memory holes. Reports continue to emerge, most recently from a former Muslim chaplain at Gitmo, that top officials encourage soldiers to abuse inmates.

This comes as little surprise, given that Miers' reluctance to rock the boat appears to be more highly developed than the average striver. "In [a] White House that hero-worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met," right-winger David Frum writes in the National Review.

Senate Democrats and patriotic Republicans should insist on a full review of Miers' advice to Bush on torture and disappearances before voting on confirmation to the Supreme Court. No one who agrees with Alberto Gonzales' monstrous contempt for human rights ought to be elevated to such a powerful post--even if her consent is expressed through tacit silence.

Ted Rall is the author of Wake Up, You're Liberal!: How We Can Take America Back From the Right and Generalissimo El Busho: Essays and Cartoons on the Bush Years.

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