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Many who came to see controversial Boalt Hall law professor John Yoo on a panel Monday night, also came to be seen. 

Yoo was welcomed to the discussion billed as “American Foreign Policy, War and the Constitution” with signs, banners and T-shirts that read: “Torture is never OK,” “Shame on Yoo,” “Don’t Kill Democracy,” and “Hey Yoo, Stop Torture.” 

Two hooded men dressed as prisoners and another who looked like their jailer and torturer were among the crowd.  

Yoo is well-known for a memo he wrote as a Department of Justice aide in 2002, arguing that fighters captured by U.S. troops in Afghanistan are not covered by the Geneva Conventions, which are treaties that embody laws of war and make mistreatment of prisoners of war illegal. 

With Yoo on the panel sponsored by Black Oak Books and the Berkeley-Richmond Jewish Community Center was moderator Jeffrey Brand, dean of the University of San Francisco Law School, Gordon Silverstein, political science professor at UC Berkeley and Peter Irons, political science professor at UC San Diego. A participant in Berkeley’s Free Speech Movement of the 1960s, Irons is best known for his role in the 1983 overturning of the conviction of Fred Korematsu, the Japanese-American man who refused orders to go to an internment camp during World War II.  

Early in the discussion, Irons drew audience applause when he put a personal face on U.S. foreign policy. 

“I’m probably the only person on this panel, who has been threatened with death by sadistic prison guards, and shackled hand and foot and around the waist and paraded in front of … crowds by shotgun-wielding guards because I refused to take part in war,” he said. 

Yoo kept to the role of theoretician, laying out his position on the Geneva Conventions. Treaties are made between nations, he said. 

“Al Qaeda is not a nation,” Yoo said. “It has not signed a treaty. In fact, there’s a specific provision in the Geneva Conventions that says even if you haven’t signed the treaty, you can unilaterally declare it. Al Qaeda has never invoked this provision. They have no desire to obey the laws of war.” 

And so the rules of war as stated in the Geneva Conventions do not apply to al Qaeda, he said. 

Further, Yoo argued that to protect national security, there may be times when interrogators need to go beyond the constraints of the Geneva Conventions. For example, when the No. 3 man in al Qaeda was captured, it would be important to extract information from him. 

“If there was one person who knew what the coming attacks on the United States would be, it’s this fellow,” he said. “I’m not saying we ought to torture him, although there are people who do. What I am (asking) is: is the United States limited to the Geneva Conventions in interrogations even though it’s not legally required?”  

The audience gave Yoo a unanimous: “Yes!” 

Irons countered with a case recently in the headlines where a U.S. prisoner was hung upside down and beaten until he died. 

“The man who conducted this homicidal torture is known to the Justice Department and I can guarantee you that under this administration, absolutely nothing will be done to prosecute him,” Irons said. 

Underscoring that the military does not want to abrogate laws precluding torture, Silverstein addressed the question of precedent. 

“Once the United States is seen as a nation that picks and chooses when it will and will not observe these accords, other nations will feel more easily like they can do the same,” he said. 

There are, however, times that the need for intelligence prevails, Yoo argued. “What the military has to balance is, as you said, the precedent, versus getting the information that’s going to prevent a 9/11 attack. I think that’s a policy-maker’s decision.” 

Much of the exchange revolved around the question of which branch of government makes the decision to go to war—Congress, the president or the courts. 

“The framers were crystal clear: Congress has the power to declare war,” Irons said, noting that since Truman’s presidency, the United States has gone into war, both small wars like invasion of Grenada and bigger wars like today’s Iraq War, “without any constitutional sanction.” 

Yoo argued that one should look at how the balance of power works on a practical level. The United States has gone to war 130 times and there have been only five declarations of war, he noted. So, in practice, Congress does not, in fact, necessarily declare war.  

But Congress does hold the ultimate authority, the power of the purse. Congress can stop war by withholding appropriations. 

“Funding is the ultimate check,” Yoo said, chiding legislators for refusing “to take political responsibility about something which is uncertain, that could be very popular or very unpopular. They must be re-elected every two years. They’re more than happy to let the president take responsibility or to take blame.” 

The argument can be extended to the U.S. prison at Guantanamo Bay, he said. 

“If Congress did not want Guantanamo Bay to exist, it could simply defund Guantanamo Bay.” 

Oakland attorney Walter Riley, who was among those listening to what Yoo had to say, said, “John Yoo doesn’t discuss constitutional law.” 

Yoo’s assertion that the president can do what he wants until Congress stops him with the power of the purse is not a constitutional argument, Riley said. “It’s a political argument.”t