May I Say Who's Calling?

Sparks flew yesterday when U.S. Attorney Richard Roper debated his former boss, Paul Coggins, now in private practice, about the legality of using warrantless surveillance. OK, maybe not sparks—how about glowing embers?

Sponsored by the Dallas chapters of the Federalist Society and the American Constitution Society and hosted by the law firm of Jones Day, the debate focused on the Bush administration's gathering intelligence from million of phone records in its global effort to combat Al-Qaeda. At the heart of the matter is whether it violates citizens' civil rights.

"Some people have called this a domestic spying program," Roper said. "I disagree." He argued that the Fourth Amendment to the Constitution and the Foreign Intelligence Surveillance Act give the president broad powers to gather information on threats to national security. Roper pointed out that the National Security Agency uses the standard of "reasonable basis" to determine whose phone records to collect. "That's not far off from probable cause"—the standard for search warrants. "If we were to have another 9/11-type attack, it would immediately be followed by, 'What could we have done to stop it?' That's what this is about: an early warning system" to identify and stop terrorists, he insisted.

Coggins argued that the debate was about the Bush administration's erosion of the system of checks and balances between branches of government enshrined in the Constitution. "I think it's illegal and improper," Coggins said. The Foreign Intelligence Surveillance Act "was passed because of past abuse by the NSA. They haven't followed FISA; it works because it balanced the needs of intelligence versus civil rights."

Coggins says the administration has refused to answer any questions about what kinds of calls are being intercepted. "It's not clear that they haven't intercepted domestic calls," Coggins said. "There's a whole lot of unprecedented stuff happening. They've even raised the specter of going after reporters, some who've won Pulitzer Prizes. Are they going to go from Pulitzer Prizes to prison? It's got to have a chilling effect."

On top of that, Coggins said sources with federal agencies are complaining that this "very dubious program" is generating thousands of useless leads that waste agents' time. Coggins predicted a "scandal" was about to break over Department of Justice investigators assigned to look into the program being denied security clearances to do their jobs. "The current attorney general [Alberto Gonzales] is involved with this up to his neck," Coggins said, adding that if the administration refuses to allow this to be investigated by the DOJ, any "self-respecting" attorney general would pull an Elliot Richardson and resign. --Glenna Whitley

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