MELISSA BLOCK, host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
MICHELE NORRIS, host:
And I'm Michele Norris.
Tomorrow President Obama will deliver a speech making the case for his national security policies. The president is expected to outline some of his thinking on how to close Guantanamo and where to send it's detainees. In a moment will lay out the fault lines in that debate.
BLOCK: The president is also expected to talk about harsh interrogations and techniques that he has called torture. We begin this hour with NPR's Ari Shapiro. He has been looking in to the Bush administration memos that authorized tough treatment of detainees.
The earliest justice department memo was dated August 1st 2002. We now know coercive interrogations began months before that memo was written. Here is Ari's report on the legal rules that governed those early interrogations.
ARI SHAPIRO: The debates about torture stopped being abstract on March 28, 2002. That's the date Americans picked up their first high value detainee, Abu Zubaydah. Brent Mickum is his lawyer.
Mr. BRENT MICKUM (Attorney, Representing Abu Zubaydah): Based on public documents that I have read, it seems to me beyond question that Abu Zubaydah was subjected to torture before the issuance of the August 1st memorandum.
SHAPIRO: The August 1st memorandum was the first justice department memo authorizing harsh interrogations. By that date, Abu Zubaydah had already been interrogated for four months.
Mr. ALI SOUFAN (Former FBI Interrogator): The contractors had to keep requesting authorization to use harsher and harsher methods.
SHAPIRO: Former FBI interrogator Ali Soufan was with Zubaydah during April and May of 2002. Last week, Soufan told Congress that in the first two moths of Zubaydah's detention a CIA contractor used nudity, sleep deprivation, loud noise and extreme temperatures during interrogations. This was an exchange between Soufan and Rhode Island Senator Sheldon Whitehouse.
Senator SHELDON WHITEHOUSE (Democrat, Rhode Island): You protested to your superiors in the FBI that this was becoming inappropriate, illegal. I believe you even threatened to arrest…
Mr. SOUFAN: I think description was…
Sen. WHITEHOUSE: …somebody if you were to stay there correct?
Mr. SOUFAN: Yes sir. My description was borderline torture.
SHAPIRO: So if borderline torture was taking place months before the first Justice Department memo authorizing harsh interrogations, did the contractor have legal permission to do what he was doing? The CIA says yes. Spokesman Paul Gimigliano told me quote "The August 1st 2002 memo from the Department of Justice was not the first piece of legal guidance for the interrogation program." Well that raises the question what was the first legal guidance? The CIA won't say.
But here's the description of what happened from someone with knowledge of Zubaydah's interrogations who would not speak on the record: Nearly everyday the contractor working on Zubaydah's interrogation would sit at his computer and write a top secret cable to the CIA's counter-terrorism center. Each day, the contractor would request permission to use an enhanced interrogation technique. And according to this source the CIA would forward the request to the White House.
There White House counsel Alberto Gonzales would sign off on the technique and the contractor at the safe house would get the administration's legal blessing to increase the pressure on Zubaydah in the next interrogation. Today, we have a document that is consistent with the source's account. Tuesday night, the CIA sent the ACLU a spreadsheet as part of a lawsuit. It's a log showing 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. Jameel Jaffer is the ACLU lawyer who sued to get this document.
Mr. JAMEEL JAFFER (Lawyer, ACLU): At the very least, it's clear that CIA headquarters was choreographing what was going on at the black sites. 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.
SHAPIRO: Former White House counsel Alberto Gonzales did not respond to a request for comment through his lawyer. The contractor in the story has been publicly identified as a psychologist named James Mitchell. He has not spoken publicly and could not be reached. Bradford Berenson worked in the White House counsel's office under President Bush, though he played no role in authorizing harsh interrogations. He says for the White House to tell interrogators what they can and cannot do seems highly unusual.
Mr. BRADFORD BERENSON (Former White House Attorney): These were highly unusual and extraordinary times after 9/11. But ordinarily the White House counsel's office is not in the business of providing advice to anyone outside the White House itself.
SHAPIRO: All through the summer of 2002, top officials across the government were trying to sort out the ground rules for legal interrogations. One former government official familiar with those discussions told me quote "I can't believe the CIA would have settled for a piece of paper from the counsel to the president." This person went on, if that were true, then the whole legal and policy review process from April through August would have been a complete charade.
Ari Shapiro, NPR News, Washington.
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