Michael Ellis as NSA General Counsel

Over at Lawfare, Susan Hennessey has an excellent primer on how Trump loyalist Michael Ellis got to be the NSA General Counsel, over the objections of NSA Director Paul Nakasone, and what Biden can and should do about it.

While important details remain unclear, media accounts include numerous indications of irregularity in the process by which Ellis was selected for the job, including interference by the White House. At a minimum, the evidence of possible violations of civil service rules demand immediate investigation by Congress and the inspectors general of the Department of Defense and the NSA.

The moment also poses a test for President-elect Biden’s transition, which must address the delicate balance between remedying improper politicization of the intelligence community, defending career roles against impermissible burrowing, and restoring civil service rules that prohibit both partisan favoritism and retribution. The Biden team needs to set a marker now, to clarify the situation to the public and to enable a new Pentagon general counsel to proceed with credibility and independence in investigating and potentially taking remedial action upon assuming office.

The NSA general counsel is not a Senate-confirmed role. Unlike the general counsels of the CIA, Pentagon and Office of the Director of National Intelligence (ODNI), all of which require confirmation, the NSA’s general counsel is a senior career position whose occupant is formally selected by and reports to the general counsel of the Department of Defense. It’s an odd setup — ­and one that obscures certain realities, like the fact that the NSA general counsel in practice reports to the NSA director. This structure is the source of a perennial legislative fight. Every few years, Congress proposes laws to impose a confirmation requirement as more appropriately befits an essential administration role, and every few years, the executive branch opposes those efforts as dangerously politicizing what should be a nonpolitical job.

While a lack of Senate confirmation reduces some accountability and legislative screening, this career selection process has the benefit of being designed to eliminate political interference and to ensure the most qualified candidate is hired. The system includes a complex set of rules governing a selection board that interviews candidates, certifies qualifications and makes recommendations guided by a set of independent merit-based principles. The Pentagon general counsel has the final call in making a selection. For example, if the panel has ranked a first-choice candidate, the general counsel is empowered to choose one of the others.

Ryan Goodman has a similar article at Just Security.

Posted on November 18, 2020 at 6:21 AM11 Comments

Comments

yet another Bruce November 18, 2020 8:46 AM

Here at the end of 2020, I feel like we are in an odd situation. Norms and customs have been violated, in this case norms and customs for civil service hiring, and yet there is an informal taboo against prosecuting those who violate political norms. Both Bush 41 and AG Holder spoke against “the criminalization of policy differences”. Punishing norm violations through shaming is problematic since the reputation leger has forked into two seemingly independent accounts. I miss the rule of law!

abdul alhazred November 18, 2020 10:59 AM

How dare the President exercise his authority to hire and fire!

Oh how I yearn for the stability of Obama years, when Presidents discharged their duties with tact and dignity while they droned wedding parties and bailed out bankers.

SwashbucklingCowboy November 18, 2020 1:07 PM

Abdul, the president and his minions are supposed to follow the law when hiring and firing and there’s a serious question if that happened here.

Mataes November 18, 2020 2:20 PM

yeah, it’s definitely an “odd setup” — but the vast byzantine web of the Federal bureaucracy is full of these complexities.
However, the basic constitutional structure of the Federal government clearly puts any sitting President as the top boss of the entire Executive Branch… including DoD, NSA, CIA. The top boss should and does have lots of discretionary power.
Vague allegations of irregularities and interference seem extremely weak against that background.

Anon E. Moose November 18, 2020 4:34 PM

Doesn’t this article attempt to politicize a non-political career post? It sounds self-serving, spiteful, and hypocritical. If this truly is a merit based position then ask the question, “Is he performing his job well?” If the answer is yes then move on Susan Hennessey and Ryan Goodman.

Clive Robinson November 18, 2020 8:54 PM

@ ALL,

If there is “anti-burrowing” legislation then it should be examined carefully.

The fear that the equivalent of “breach of attorney-client privilege” might occur as a planted attorny reports back to a political master about what the NSA Director is thinking and acting upon is a grave one.

In effect it would be a significant National Security threat, as the political master could as many US politicians have in the past broadcast to the world the reasoning behind particular “methods and sources” effectively burning US personnel and those from other countries…

In effect it appears that the relationship between Devin Nunes and Michael Ellis, has in effect done that already.

ResearcherZero November 20, 2020 2:34 AM

@SpaceLifeForm

Foreign actors love cults, it’s a who’s who of gullible people. Not that we always see too much better performance from politics, the public, and sometimes the police (that can be strictly filed under just my opinion on the matter).

Though it’s often rare people pay any attention if given good information. In fact sometimes they choose the complete opposite of taking information seriously, especially if that information is somewhat confronting.

“Excuse me, but we have credible information that your fellow occultists pose a real and present threat to your safety.”

“No! You are just a bunch of stupid lying f’ing d’heads!”

“OK then, where do we go from here?”

Bownse November 20, 2020 8:56 AM

Careful, Bruce. The tone of the article and comments dance precariously on either side of partisanship on a blog that should be inclusive (because everyone needs IT security awareness).

yet another Bruce November 20, 2020 9:25 AM

@Bownse

Issues of trust and security arise often around information technology but they are not IT issues, as such. When issues of trust and security come up in US politics I think it is reasonable to talk about them here. If not us then who?

name.withheld.for.obvious.reasons November 23, 2020 3:11 PM

Call me skeptical if you want but anything coming out of the NSA that is not a mea cupla for past transgressions should be treated as suspect. Any discussion of accountability is just that, a discussion. Until some top level personnel, such as the Captain of the Star Trek Enterprise, face the music I wait to see the day when the NSA returns to a nearly reputable agency. Get back to foreign surveillance, SIGINT and COMINIT and cut out this fishing in barrel attitude that permeates the agency. How’s that CE working out for ya so far?

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