By Andy Metzger
STATE HOUSE NEWS SERVICE
BOSTON -- Now a candidate for the state's highest executive office, Juliette Kayyem in years past entered the crucible of the mid-aughts debate over enhanced interrogation, targeted killing and other "War on Terror" tactics, advocating for an approach to give more responsibility for battlefield decisions to the president, with oversight.
A Democrat who opposed the Iraq War, Kayyem and her then colleague at Harvard University opted for an approach they believed would effectively end many United States practices while also achieving acceptance by those favoring hardline approaches: banning torture, but allowing the U.S. to skirt certain international treaty obligations around interrogation only with the president's authority and notice to Congress.
"For the extremely rare case of an immediate threat to U.S. lives, unavoidable in any other way, we would allow the President to personally authorize an exception to the U.S. obligation under the Convention Against Torture and the U.S. Constitution not to engage in 'cruel, inhuman, or degrading treatment,' short of torture, so long as the decision by the President is based on written findings documenting his reasons and is promptly submitted to the appropriate congressional committees," Kayyem wrote in a November 2004 paper published through Harvard University's Belfer Center with law professor Phillip Heymann.
Kayyem told the News Service the suspension of the U.S. Constitution would be limited to its treaty obligations, and Heymann said while cruel and inhuman treatment should be out of bounds, degrading treatment is a lesser ill that could have limited utility. Kayyem also said the theory was to take the authority out of young soldiers' hands and give it to the president, with congressional oversight, which she said would limit its use.
"The Bush administration had legally authorized coercive interrogation and stuff that certainly looked like torture, like water-boarding, under an emergency exception because of the saving of lives, and authorized individual soldiers to take those actions," Kayyem told the News Service. She said, "We basically said, 'Hey, president, if you believe that there's a ticking time bomb scenario, it's on you. You cannot delegate the ticking time bomb scenario out to an 18-year-old guy who's in the National Guard and serving in Iraq."
"We were moving everything towards the humane side, but we were trying to move it in ways that would be acceptable to at least a significant number of those that were in the majority at that time, and prepared to do anything to reduce the threat of terrorism," Heymann said in a separate telephone interview arranged by the News Service.
Currently seeking the governorship, Kayyem, who held homeland security posts early in the administrations of Gov. Deval Patrick and President Barack Obama, said there has been some curiosity on the campaign trail about her interrogation recommendations and she expects the issue to come forward during the course of the campaign.
After being asked about it by the News Service, Kayyem said, "I actually welcome the opportunity to explain it."
The paper recommended the president should be allowed to authorize off-battlefield killings, with notice to Congress, when there is "reasonably imminent" danger to U.S. lives and no reasonable alternative. Heymann said while the work he and Kayyem produced was not adopted, it became a useful basis for those seeking a more civil libertarian counterpoint in the national security debate.
"They didn't do an awful lot of it, but it provided a central counterpoint to what I thought, and I think Juliette thought, was . . . a willingness to sacrifice humaneness to counterterrorism whenever," Heymann said.
Kayyem said she believes the recommendation formed a "basis of reforms" that was taken up late in President George W. Bush's second term and in the Obama administration.
The paper, which Heymann said became the basis for a book, did not attempt to distinguish certain techniques that fall into a gray area between what is clearly torture and what is acceptable under certain circumstances, recommending the president should determine "highly coercive interrogation" that can be employed within the confines of treaty obligations.
When the U.S. Senate ratified the United Nations Convention Against Torture in 1994 it narrowed the definition of torture, according to an appendix. The appendix to the 2004 paper notes actions that had been approved with some restrictions in Iraq, including sensory deprivation, the use of "stress positions," forced changes in sleep patterns, isolation and the use of dogs. In addition the appendix lists activities that fall clearly into the category of torture, such as, unleashing dogs, beating and sodomizing prisoners and the use of phosphoric acid.
"This was a time when the president said he was not bound by legal constraints in the War against Terrorism, I mean any legal constraints," Kayyem said, of the period during the height of the Iraq War and a still rumbling war in Afghanistan. Both Kayyem and Heymann said their goal was not to classify individual interrogation techniques, but they believe individual techniques should be classified.
The paper, which was aided by a diverse advisory panel, also recommended limits on the collection of information about U.S. persons by U.S. intelligence, limits on government agents infiltrating religious or political groups, and limits on profiling people based on their nationality.
Kayyem said she was outspoken on national security issues, was a board member of Human Rights First, and was named a hero by the Boston Phoenix - a honor granted for "fighting the use of secret evidence in deportation proceedings against a handful of immigrants, mainly Arab men," according to an archive of the late alternative weekly.
Kayyem is a Christian Arab by ethnicity who is raising her children in the Jewish faith with her husband David Barron, a former Obama administration legal counsel nominated for a federal judgeship.
Shortly after the Sept. 11, 2001 terrorist attacks and amid a wave of Anthrax mailings, Kayyem said she suggested on Fox News that the Anthrax might not be the work Arab terrorists. She told the News Service the poisonous bacteria has been used by America's militant right-wing.
Kayyem was nursing her eldest daughter, born that August, and working at the Kennedy School of Government during that time. Shortly after the Fox appearance and resulting criticism, which she said made mention of her Arab ethnicity, she was targeted with fake Anthrax, which she received while opening mail at her office.
"It's a very isolating experience, because you kind of wonder what it is that you just touched, and the Kennedy School went through all the right protocols," Kayyem said. She said, "The grains were too big to be anything, so they kind of knew it was powdered sugar from the get-go."
Kayyem said she had bucked her party by opposing the Iraq War and said the series of recommendations, if adopted, would effectively stop the use of a large range of interrogation techniques.
"Once a president is told, 'It's on you,' Let me tell you, they clean up a bit. And that's what the Bush administration did," Kayyem said.
A lightning rod in the national security debate about a decade ago, the U.S. policies around interrogation and targeted assassinations has re-emerged as a flashpoint. U.S. Senate Select Committee on Intelligence Dianne Feinstein in March accused the Central Intelligence Agency of spying on her committee's work studying interrogation and detention programs.
A candidate who appears to revel in off-the-cuff remarks in public appearances, Kayyem said her entry into the fray of post-9-11 national security policy is an example of how she handles situations.
"I engaged. I mean, that's what I do. I don't sit idly by and pontificate how the world should be," she said.