PUBLISHED:February 21, 2009

Prof. Christopher Schroeder testifies about an Office of Legal Counsel memorandum

During the Clinton administration, Prof. Christopher Schroeder served as a deputy assistant attorney general in the Office of Legal Counsel in the Department of Justice, and as acting head of that office in 1996-97. His testimony addressed an OLC memorandum dated Aug. 1, 2002 authorizing the use of aggressive techniques in the interrogation of detainees at Guantanamo Bay and elsewhere, the so-called “torture memo,” which was withdrawn by another OLC memorandum in 2004. In addition to offering testimony on the scope of executive power asserted by OLC lawyers in the Bush administration as reflected in the 2002 memorandum, Schroeder evaluated its content in light of 10 “best practices” guidelines he compiled with 18 other former OLC lawyers who served over several administrations.

“Such practices are not guarantees that legal advice coming from the Office of Legal Counsel can be kept free from legal error, but they are time-tested means for reducing the likelihood of such errors and improving the quality of advice that is given,” he wrote in his prepared testimony. “They ought to be valued for those reasons.”

An excerpt of his testimony follows.

Guideline Number Eight states that “Whenever time and circumstances permit, OLC shall seek the views of all affected agencies and components of the Department of Justice before rendering final advice.” Wide consultation increases the chances of drawing on relevant expertise located elsewhere, both inside Justice and outside. Departments and agencies charged with administering statutes and other laws often have had lengthy experience with the legal ambiguities and issues raised by them. OLC may not always agree with the legal positions taken by other components of the executive branch, but carefully listening to them can only improve the quality of the product.

Specifically, whenever OLC is asked to analyze a criminal statute, it typically consults with the Criminal Division of the Department of Justice, which as the component charged with overseeing the prosecution of individuals for violating the criminal laws naturally must regularly engage in interpreting them … [C]onsultation often involves multiple divisions, departments or agencies.

… The 2002 memorandum is silent with regard to consultation. Most of the investigative reporting on how these memoranda [the Aug. 1, 2002 memoranda and another that remains classified] were constructed concludes that only a very small group of high level officials had access to their contents until after they became final. Both the State Department and the INS administer applications of the anti-torture statute in making asylum and immigration status determinations, but we have no indication that their advice was sought …

Guideline Number Two states that “OLC’s advice should be thorough and forthright, and it should reflect all legal constraints, including the constitutional authorities of the coordinate branches of the federal government — the courts and Congress — and constitutional limits on the exercise of governmental power.”… One of the shortcomings of the 2002 memorandum is that it appears to reach firm legal conclusions without disclosing that there are some substantial counter arguments to or weaknesses in the reasoning that has been used to justify those results.

… Exacerbating the problem, no mention is made of the fact that the Convention Against Torture expressly states that the prohibition on torture is absolute, countenancing no exceptions, regardless of any claim of necessity. Nor does the memo even mention the official position of the United States, articulated in the U.S.’s Report to the UN Committee Against Torture in 1999: “No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a ‘state of public emergency’) or on orders from a superior officer or public authority.” …

Whenever possible, written advice from the Office of Legal Counsel should acknowledge counter arguments or difficulties that its reasoning may face when it is reviewed by others. For one thing, acknowledging the counter arguments shows to the reader that the arguments have been considered and, if the memorandum is thorough, will also indicate why in the end the OLC advice finds them not sufficiently compelling to alter the conclusions reached. For another, it allows the ultimate “clients” of the analysis, who will frequently include law-trained individuals, to evaluate the quality of the advice, not having simply to rely upon an OLC conclusion. This empowers the attorney general and president to evaluate whether to overrule the advice, or far short of that, for all policymakers to assess whether they will decline to take action even though OLC has concluded they may take that action.