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Hearing of the Constitution, Civil Rights, and Civil Liberties Subcommittee of the House Judiciary Committee - From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III


Location: Washington, DC


I kind of observed from the earlier questioning that if I really want some answers, I probably ought to focus on Mr. Schroeder -- Professor Schroeder here. Otherwise, I'll probably be just pretty much banging my head against the wall and wasting my five minutes. So let me ask Mr. Schroeder a couple of questions here.

I'm fascinated by a comment on the first page of your written testimony where you say we must be mindful of the difference between law and policy. And I was kind of reflecting on that during the time we went to vote and recall that in the 22 years that I practiced law, I had a particular client who, when he didn't like the legal advice I would give him, would always tell me that the Lord told him to do otherwise. And I was very insistent with him that I never wanted to argue with the Lord, but I stood by the legal advice that I gave him. So I have some appreciation for the difference between policy and legal. I guess when somebody, the Lord, or somebody other than a lawyer tells you that you should do something, that the lawyer has told you he thinks is illegal, that's the distinction you're drawing between policy and legal advice, I take it.

MR. SCHROEDER: Yes, sir.

REP. WATT: Okay. All right, I think I understand the concept then. When -- well, let me first of all ask you, are there things that you understand -- I know you have not been a party to all of the torture techniques and what have you that this administration has pursued. Are there things that you understand that this administration has pursued that go beyond Mr. Yoo's memo and basically the president was told, or the vice president or somebody in the CIA was told by somebody other than Mr. Yoo that the Lord, or whoever told them, that -- have those kinds of things been engaged in, based on what you understand?

MR. SCHROEDER: Congressman, I hope I'm now not going to join Mr. Yoo and Mr. Addington as being unable to respond to your question, but I really don't have knowledge of what exactly was been going -- now, we've read reports that waterboarding was used on some suspects.

REP. WATT: Would that be authorized by Mr. Yoo's memo?

MR. SCHROEDER: I would have to, frankly, know more about waterboarding than I do. I'm sorry.

REP. WATT: That's fine. I'm not -- this is not a trick question. I'm just trying to get the --

MR. SCHROEDER: No, and I wish I could be helpful, but I just don't have the --

REP. WATT: Assume that a policy decision was made to go beyond the legal memorandum and advice that Mr. Yoo gave, the recourse that I suppose the public and Congress would have, only recourse probably, would be an impeachment proceeding. Isn't that correct? Or -- is that correct? Don't ponder too long, my clock is ticking here.

MR. SCHROEDER: I just hate to use the word in this committee which has had to consider these matters in the past. It would be difficult under the legal theory in the August 2002 memo to think of what remedy would be available other than impeachment.

REP. WATT: Okay. And I guess this is the same question that Mr. Scott was asking at some level. When an attorney gives a piece of advice that is legal advice, we presume attorneys have a sense of responsibility to the law, to the Constitution. What recourse does Congress or the public have against the attorney, if any?

MR. SCHROEDER: Well, proceedings with the bar association is one possibility. But you have to understand that I'm not --

REP. WATT: Now, I'm not --

MR. SCHROEDER: -- I'm not remotely in a position to say anything that's --

REP. WATT: I'm not suggesting that --

MR. SCHROEDER: advice being given by the individuals who gave them was under their understanding of the law at the time, the best advice that they could give. I happen to think it was wrong. But there's a big difference between being wrong --

REP. WATT: This is a hypothetical question. It has nothing -- I'm separating it from Mr. Yoo's opinion. Is there some recourse that Congress has if we find that the advice was outrageous, as Mr. Scott says?

MR. SCHROEDER: Well, I think, as far as this institution goes, I'm not aware of laws on the books that would reach that situation. Certainly, the bar associations responsible for someone's professional license could evaluate the advice that was being given and seeing if it constituted malpractice or an abuse of that person's responsibility as an officer of the court to uphold the law.

REP. WATT: So public -- really Congress and the public really have little recourse other than malpractice?

MR. SCHROEDER: I would think a disciplinary proceeding before the bar association leading to disbarment would be the kind of remedy that I would think of first. But I haven't -- this is not a question I have investigated.

REP. WATT: Okay. My time has expired and appreciate you being responsive to the questions.


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