It is clear that increasingly abusive interrogation techniques were used on Abu Zubaydah, the first high-value detainee, in the months between his capture and the first Justice Department memo authorizing harsh interrogations. But the legal guidance that authorized those early interrogations remains shrouded in secrecy.
Zubaydah was picked up on March 28, 2002. The Justice Department issued its first memo on torture four months later on Aug. 1.
Zubaydah's lawyer, Brent Mickum, believes documents and testimony in the public record establish "beyond question that Abu Zubaydah was subjected to torture before the issuance of the Aug. 1 memorandum."
'Harsher and Harsher Methods'
The public record includes testimony from Ali Soufan, a former FBI interrogator who was with Zubaydah during April and May of 2002. Soufan told Congress last week that "contractors had to keep requesting authorization to use harsher and harsher methods."
Soufan testified that in the first two months of Zubaydah's interrogation, a CIA contractor used nudity, sleep deprivation, loud noise and extreme temperatures during interrogations. That contractor has been identified as a psychologist named James Mitchell. Mitchell has not commented publicly in recent years, and he could not be reached for this story.
Soufan told senators of describing Zubaydah's treatment to FBI supervisors as "borderline torture."
The use of "borderline torture" against Zubaydah months before the first Justice Department memo authorizing harsh interrogations raises the question of whether Mitchell had legal permission to use abusive techniques.
The CIA suggests that he did.
"The Aug. 1, 2002, memo from the Department of Justice was not the first piece of legal guidance for the interrogation program," according to agency spokesman Paul Gimigliano.
But the CIA will not describe what the first legal guidance was.
One source with knowledge of Zubaydah's interrogations agreed to describe the legal guidance process, on the condition of anonymity.
The source says nearly every day, Mitchell would sit at his computer and write a top-secret cable to the CIA's counterterrorism center. Each day, Mitchell would request permission to use enhanced interrogation techniques on Zubaydah. The source says the CIA would then forward the request to the White House, where White House counsel Alberto Gonzales would sign off on the technique. That would provide the administration's legal blessing for Mitchell to increase the pressure on Zubaydah in the next interrogation.
A new document is consistent with the source's account.
The CIA sent the ACLU a spreadsheet late Tuesday as part of a lawsuit under the Freedom of Information Act. The log shows the number of top-secret cables that went from Zubaydah's black site prison to CIA headquarters each day. Through the spring and summer of 2002, the log shows, someone sent headquarters several cables a day.
"At the very least, it's clear that CIA headquarters was choreographing what was going on at the black site," says Jameel Jaffer, the ACLU lawyer who sued to get the document. "But there's still this question about the relationship between CIA headquarters and the White House and the Justice Department and the question of which senior officials were driving this process."
Gonzales did not respond to a request for comment through his lawyer.
'A Complete Charade'?
Attorneys who have worked in the White House counsel's office describe it as "highly unusual" for the White House to tell interrogators what they can and cannot do. Bradford Berenson worked in the counsel's office under President Bush, though he had no role in authorizing harsh interrogations.
"These were highly unusual and extraordinary times after 9/11," says Berenson, "but ordinarily the White House counsel's office is not in the business of providing advice to anyone outside the White House itself."
All through the summer of 2002, top officials across the government were trying to sort out the ground rules for legal interrogations.
"I can't believe the CIA would have settled for a piece of paper from the counsel to the president," says one former government official familiar with those discussions.
"If that were true," says the former official, "then the whole legal and policy review process from April through August would have been a complete charade."