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."
Knowing nothing about how government functions, you may find yourself wondering why memos from the OLC were necessary if Alberto Gonzales was already approving of specific techniques. That's because Gonzales, as White House counsel, actually possessed no authority to sign-off on the CIA's techniques:
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."
Which only further establishes two things that we have long-suspected and are now beginning to learn are true: 1) that the White House knew about and was deeply involved in the earliest detainee abuse and 2) that the legal memos crafted by the OLC were never about approving the use of specific techniques, but were about providing some sort of legal cover to interrogators for techniques the White House already wanted used.
For more reading on this revelation, I recommend Spencer Ackerman, who's wondering why the CIA over-ruled their own interrogators who objected to these techniques, and Big Tent Democrat, who points out that Gonzales has certainly not been forthcoming in testimony before Congress about his involvement in the formation of the legal framework for torture.