Q&A: Lanny Davis on Policing Civil Liberties Under Bush

Lanny Davis is a Washington lawyer best known for his stint as a White House spokesman during the Clinton administration, where he helped do damage control on Whitewater and campaign-finance investigations.  But Davis is also one of the few Democrats to work for the Bush administration—until he resigned last week as a member of the president’s Privacy and Civil Liberties Oversight Board. The five-member board was created by Congress at the recommendation of the 9/11 Commission to monitor potential abuses of civil liberties.  Davis spoke with NEWSWEEK’s Michael Isikoff about his service on the panel, his reasons for resigning—and his dealings with embattled Attorney General Alberto Gonzales.

NEWSWEEK: Why did you quit?
Lanny Davis:
I came to the conclusion that the board could not be independent under the structure that Congress enacted—namely an oversight entity within the Office of the president. Those two things just couldn’t be reconciled.

A lot of people said that was pretty clear from the beginning. You were located within the White House staff. Why would anybody think you would be anything other than an arm of the administration?
Well, hindsight is 20/20. I certainly see that now. But at the time, I was asked and discussed this—even with a member of the 9/11 Commission, Richard Ben-Veniste. He encouraged me to see at least whether the White House itself would empower us with independence so we would have the advantage of access. I thought perhaps, to use the metaphor, the square peg could be rounded into a circle. But it just didn’t happen.

Reading your letter of resignation, you don’t seem to have been very happy about the way the board was operating.
I was increasingly unhappy. … It began the very first time we met.  I wanted to post an announcement in the White House press room, saying nothing more than that, that we had met for the first time. And we were informed by the White House press office that we weren’t allowed to do that. And I asked the question, “What do you mean, we’re not allowed to do that?”

You had a number of other disagreements after that.
Very emblematic was the public forum we had scheduled in October 2006. It was our first chance to hear from civil-liberties groups and people who were genuinely concerned that in the name of fighting terrorism, we might be sacrificing constitutional rights. We all thought that was important. We were forced to cancel it because the White House told us no press would be allowed. … In this case, it was political: it wouldn’t be a good idea to have a controversial [forum] with civil-liberties groups criticizing the Bush administration within the White House complex right before the election.

You were a bit taken aback by that.
Honestly, I laughed. I thought somebody was making a joke. We were going to have a public forum and bar the press? So we cancelled it and then rescheduled the forum for December 20006 at Georgetown. … We did invite the press, we didn’t ask permission, we invited them. And it was a very successful forum. We had lots of controversy, lots of discussion; it was exactly what was supposed to occur. I have just learned in the last several weeks that the press was allowed to attend [that event] but wasn’t allowed to ask questions. Had I known that, I wouldn’t have participated, nor do I think any of the board would have participated.

There were a number of other issues you outlined in your letter [of resignation], particularly about the contents of the board’s annual report to Congress.
Subsequently, the most important concern that I had was limiting the scope of the board’s reviews to U.S. persons, meaning U.S. citizens or aliens that were here on a legal basis.  That …would mean ignoring what was happening at Guantanamo with detainees, ignoring renditions—where, under the authority of the U.S. government, people were snatched and sent to Syria in dungeons and tortured. So I took the position on the board that we’ve got to investigate a non-U.S. citizen outrage if it is under the auspices of our Constitution and our government. But there was genuine and legitimate disagreement on that point by the members of the board.

The disagreement came from [former Solicitor General and fellow Civil Liberties Board member] Ted Olson, right?
I do owe to my colleagues on the board the confidentiality of our own discussions.  But it wasn’t just one member.

You also mentioned the editing of the annual report by the White House staff.
One in particular [that] disturbed me the most, and disturbed other members of the board, was the material witness statute. We had learned both at our hearing and from other sources that it was subject to abuse. If somebody is a material witness to a potential conspiracy or terrorist act, that person could be held without charge, without limit on time—even without access to counsel. We were told this [by civil-liberties groups], but we were not sure whether that was true. So we said in our report to Congress that we were going to look into this material witness program. When we got back [from White House staff] this extensive edited version, called the redline, two days before we were supposed to submit the report to Congress on March 29, 2007, that paragraph was deleted. … The issue, as it was explained to our chair [Carol Dinkins], was you could look into it, but we don’t want you telling Congress that you’re looking into it, so we want it out of your report.

And who was telling you this?
We don’t know, again, who the “who” was. But in this case, we were told the reason, which was most objectionable of all. It was essentially a political reason. If you send it to Congress and say you want to look into this, people might confuse this or overlap this with the U.S. attorney controversy—and we rather you not do this. And that to me was an unacceptable reason not to report something to Congress.

They were saying this might create difficulties for Attorney General Gonzales.
Well they didn’t mention anybody in particular, but there was a controversy involving the attorney general and U.S. attorneys. Since the material witness statute is implemented by the U.S. attorneys, we were told there might be an overlap in some people’s minds. Whatever it was, it was an unacceptable reason for proposing a deletion. My reaction was strong anger. I was under the impression we were an independent oversight board.

So you went to go see [White House counsel] Fred Fielding.
Mr. Fielding is somebody I’ve known and respected for many years. He was a member of the 9/11 Commission that recommended that this board be independent of the White House [and given] subpoena power. … I think he was in a little bit of disbelief. … He certainly agreed with me—as did at least one board member—that that had to be restored. And he caused it to be restored. … He certainly wasn’t happy.

But you had your grievances addressed. Why wasn’t that good enough for you?
I didn’t want another year of constantly running back to Fred Fielding to change an entire culture.

Going on during all this was the controversy over Attorney General Gonzales and his handling of the firings of a group of U.S. attorneys.  Did that factor into your decision?
Yes, I was reluctant to resign—and I delayed resigning—precisely because I did not want to feed into a public controversy that had nothing to do with my concerns. I did not want to be seen as a partisan feeding that controversy.

You met with Gonzales?
Several times.

What was your impression?
I think he is a very honest and honorable man. I think he made a lot of very bad mistakes. And I think he was unsophisticated about the need to get all the facts out. Even if you admit making bad mistakes, do it early and do it yourself. I think he badly botched the U.S. attorney situation and made matters worse. … I feel, knowing him personally, that he thinks he is telling the truth. But I think he is just overwhelmed and didn’t handle this very effectively.
Last week, we had former deputy attorney general Jim Comey’s testimony that Gonzales, as White House counsel, tried to get an ailing former attorney general John Ashcroft to reauthorize the terrorist surveillance program that the Justice Department had concluded was no longer lawful.

Look, at that point, he was doing his job as the president’s lawyer. He’s not attorney general. I think he did forget when he became attorney general that he was no longer the president’s lawyer. But I have no problem with a lawyer for a client trying to accomplish the client’s objective. In this case, the client was the president of the United States. What he and [former White House chief of staff] Andrew Card did was presumably at the bidding of the president, doing what the president wanted them to do. Whether it was right or wrong is a whole different question.

The board said it was given 100 percent access to the Terrorist Surveillance Program. And you ended up giving it a complete clean bill of health. You say it is operating perfectly appropriately, with complete safeguards for civil liberties. You signed that report.
I don’t believe those adjectives were used.

Well let’s get the exact words. The report said, “Based upon its review, the board has concluded that the conduct of these surveillance activities appropriately considers and reasonably protects the privacy and civil liberties of U.S. persons.”
Yes, I believe those words after being exposed to the real-time operation of these programs, questioning individuals responsible for watching and hearing and confirming the number of checks and balances and disciplinary procedures. … I was impressed by the people at the [National Security] Agency and the way they conducted themselves. But I never agreed to any sentence in the report that the programs themselves were either legally or constitutionally initiated without getting authorization from Congress or the FISA [Foreign Intelligence Surveillance Act] court. I am of the opinion that should have happened and it didn’t. I think we should have addressed that issue in our report.

Why didn’t you?
I think there was disagreement on the board on that issue. So where there were areas of disagreement we compromised. … On the foundation of the program, there was disagreement about its constitutionality and legality without getting express authorization from the FISA court.

Which the administration has since agreed to do. So what you’re saying is the program as it was constituted before, did not have an adequate legal basis?
In my opinion, either as a matter of law or as a matter of politics or both, the administration … should have immediately gone to Congress, to the intelligence committees, to either get the FISA law changed to do what they wanted to do in a new technology era—or gone to the FISA court to see whether the FISA court could adopt the old law to the new technologies. It turns out the latter is what they did and they accomplished that in what I think was a quite creative and brilliant fashion in the Justice Department in 2007. Which simply raises the question I always had in my mind: why didn’t you do it earlier?

What’s the answer?
There are several answers. One, it took a while for people to figure it out. The second:  I think they were under some pressure from some members of the White House senior staff that it wasn’t necessary to go to FISA because there was inherent power either under the president’s executive authority as Article II powers or the original resolution after 9/11. … As a matter of law and politics, they should have gone to Congress and the FISA court much earlier than they did.

Everybody knows you as a Democrat who served in the Clinton White House. But you actually had your own personal relationship with George W. Bush.
I’ve known President Bush since Yale College. I was a class ahead of him. But we were in the same small community residential college. … We were also in the same fraternity and I have to say we partied together pretty well. And I have a genuine affection, admiration and personal respect for President Bush. I 100 percent disagree with him on 99 percent of the policies of his administration, especially in the war in Iraq.

Did he ask you to serve on this board?
I never spoke to President Bush personally. But one of his top assistants called me. … I also spoke to Karl Rove before I said yes. And when I was thinking of resigning, I also called Mr. Rove.

What did he tell you in each of those conversations?
Before I decided to take it, he told me a funny story. When my name came up as a possible nominee to the board, there were people in the Oval Office who just about fell off their chairs when President Bush suggested me. I think his expression was, “We just about fell off our chairs when the president said, how about Lanny Davis?” We both laughed on the phone. … On the day of my resignation, I called him and he returned my call pretty quickly. I told him my reasons, that I wasn’t going to be impugning anybody’s motives. He was very gracious. He said he was sorry I had made the decision, but he understood the reasons why.

Can this board serve any purpose in the way it is currently structured?
I don’t believe this board can serve any effective oversight purpose in the current structure, given the White House’s culture. … The culture is pervasive and it’s a culture of control, management, and everybody has to stay on the same page. There are some times (from my Clinton White House days) that I am very envious of that culture and the discipline, until recently, they were able to impose inside the White House. There are some very good people on the board—Carol Dinkins, Alan Raul, Frank Taylor and Ted Olson. But under the current culture and current structure I don’t believe they can provide effective oversight unless Congress changes the structure and places this body as an entity outside the White House.