The interrogation techniques ordered by the Bush administration for use on Guantanamo Bay detainees have sparked controversy in part due to the administration's secrecy in implementing the tactics. Duke law professor Christopher Schroeder served as assistant attorney general in the U.S. Department of Justice's Office of Legal Counsel from 1996 to 1997, and testified June 26 before a subcommittee in the U.S. House of Representatives Committee on the Judiciary regarding the role of OLC lawyers in advising the president.
The day after his testimony, The Chronicle's Shuchi Parikh spoke to Schroeder about why he believes OLC lawyers overstepped their bounds in recommending the Guantanamo interrogation methods.
The Chronicle: You mentioned in your testimony a need for OLC attorneys to differentiate between being advisers and policy makers. Can you explain why this separation is important?
Christopher Schroeder: It's important for policy makers to understand what the legal constraints are on their policy, and if you think you're a policy maker, you're more inclined to confuse those two. Law is supposed to act as a constraint on what an individual is free to do, but if you think you're managing both the law and the policy you're much more likely to blend those two.
TC: Can you explain briefly how the interrogation memoranda violated the 10 "best practice" Guidelines for OLC lawyers you referenced?
CS: It doesn't appear that the people who read it consulted enough with other Executive Branch lawyers in the State Department or in the Immigration and Naturalization Service or in the criminal division of the Justice Department. All of those people would have experience in interpreting torture and it's not clear they were talked to. The second problem is the memo was kept secret, and one of our principles is that legal advice should be publicly available particularly when the advice is the president should expand his powers.
TC: Were the 10 Guidelines formally accepted by the OLC?
CS: These are guidelines that former employees [drafted]-people looking back on the experiences that they have had and other people in the offices have had in preparing legal advice. We looked back at historical records and asked what is it that is typical of good legal opinion writing and thought these were the characteristics that we thought best captures how the office operates when giving high-quality legal advice. It was developed not by anybody who was currently in the administration but as our effort to be hopefully helpful.
TC: You testified [June 26] with [former assistant attorney general] John Yoo. Do you believe Yoo should receive any legal action for drafting the interrogation memoranda?
CS: At the moment it's my opinion that he shouldn't. I think [it's] his word that he was exercising good faith in trying to give the best legal advice that he can. Being a lawyer myself I'd hate to live up to the standard of infallibility. So, I don't think there should be any legal proceedings against him.
TC: How much do you think these hearings and the Guantanamo Bay controversy play a role in the current presidential election?
CS: The interrogation procedures may play a role in the sense that I think John McCain and [Barack] Obama may have differing views over the scope of the president's authority-it may not be specifically because of the interrogation [techniques] but it may be an example of the scope of presidential power.
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