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.

. . . "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."

'A Complete Charade'?

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."

(Emphasis supplied.) BTW, during his Senate confirmation hearings, Gonzo expressly denied that he had expressed an opinion on the legality of torture to ANYONE, much less to the CIA. He clearly lied to Congress under oath:

SEN. FEINGOLD: . . . the issue is whether you disagreed with that [the Bybee] memo and expressed that disagreement to the president. You're the president's lawyer. Isn't it your job to express your independent view to the president if you disagree with the opinion of the Justice Department? Or do you just simply pass on the DOJ's opinion no matter how erroneous or outrageous, and just say to the president, in effect, this is what the DOJ says the law is?

MR. GONZALES: Thank you, Senator, for that question. Let me try to clarify my comments regarding my role in connection with the memo, and my role generally as I view it as counselor to the president. It is, of course, customary, and I think to be expected, that there would be discussions between the Department of Justice and the counsel's office about legal interpretation of, say, a statute that had never been interpreted before, one that would be extremely emotional, say, if you're talking about what are the limits of torture under a domestic criminal statute. And so there was discussion about that. But I understand, and it's my judgment that I don't get to decide for the executive branch what the law is. Ultimately that is the president, of course. But by statute, the Department of Justice is given the authority to provide advice to the executive branch. And so while I certainly participate in discussions about these matters, at the end of the day that opinion represents the position of the department and, therefore, the position of the executive branch.

In case anyone cares about such things these days.

Speaking for me only