Search begins for new NSA top lawyer, following a controversial resignation
The Defense Department has begun a new search for the top lawyer at the NSA roughly six months after the organization was ordered to install an ex-GOP operative in the job — the fallout of which continues to create tension between the intelligence organization and House Republicans.
The spy agency’s general counsel position was re-listed on Wednesday. The appointment is made by the Pentagon’s general counsel, though the NSA director traditionally has a say on the selection.
The process for picking the top lawyer had been a mostly munade affair until last November when Michael Ellis, then a White House political appointee, was named to the post after a civil service competition, bypassing more qualified candidates. The selection was made after the Pentagon’s general counsel came under pressure from the White House, according to people familiar with the matter.
The decision prompted outcries from congressional Democrats over Ellis’ qualifications and legal experts who saw it as an attempt to “burrow,” or install, a political appointee in a career civil service position at the country’s largest intelligence agency in the final days of the Trump administration.
The appointment was also opposed by U.S. Cyber Command and NSA Director Gen. Paul Nakasone, who sought to delay Ellis’ installation, according to two people with knowledge of the situation who spoke on the condition of anonymity.
Nakasone was eventually ordered by the acting defense secretary Christopher Miller to place Ellis in position as the agency’s general counsel. However, the day after Ellis was sworn in — the same day Joe Biden took office — Nakasone placed him on administrative leave pending an inquiry by DoD’s inspector general into the circumstances surrounding his hiring.
Ellis, who previously worked as a lawyer for the Republicans on the House Intelligence Committee and was White House senior director for intelligence at the time he was tapped, submitted his resignation in April.
"I have been on administrative leave for nearly three months without any explanation or updates, and there is no sign that NSA will attempt to solve the issue. I therefore resign my position, effective immediately," he wrote in an April 16 letter to Nakasone that was shared with Fox News.
In his letter, Ellis claimed Nakasone had declined to meet with him to "resolve any concerns you might have related to my selection" as general counsel, adding that his lawyer had also requested information “so I could help address any misunderstandings or concerns."
The missive came just days after Nakasone was publicly grilled over why Ellis was sidelined by GOP members of the House Intelligence Committee.
Rep. Devin Nunes (Calif.), the committee’ top Republican, asked if Nakasone had discussed the situation “with any of the reporters or elected Democrats or anyone outside the NSA or did you authorize anyone to do so?”
Nakasone said he had not and later declined to answer more questions about the situation, citing the inspector general probe.
Ellis is now a visiting fellow at the conservative Heritage Foundation think tank but the Republican anger over the incident has only grown over time.
Last month House Minority Leader Kevin McCarthy (R-Calif.) issued a statement condemning what he called a "disturbing trend" at the NSA following Ellis being placed on leave and extending to the charge made, without evidence, by Fox News host Tucker Carlson that he was being spied on by the agency.
"Earlier this year, I sent a letter to Secretary of Defense Austin expressing concern over the politicization of the Agency through the sidelining of Michael Ellis as NSA General Counsel," McCarthy said. "I asked that Mr. Ellis be reinstated and expressed my concern regarding undue political influence in NSA placing Mr. Ellis on administrative leave."
The NSA “cannot be used as a political instrument, and House Republicans will ensure accountability and transparency," he added, claiming the agency also “refused to deliver information requested” by the Republicans on the Intelligence panel.
The agency issued a rare public statement to Carlson’s allegation, labeling it “untrue.”
"Tucker Carlson has never been an intelligence target of the Agency and the NSA has never had any plans to try to take his program off the air."
"We target foreign powers to generate insights on foreign activities that could harm the United States," the statement said. "With limited exceptions (e.g. an emergency), NSA may not target a US citizen without a court order that explicitly authorizes the targeting."
Despite the denial, McCarthy said he asked Nunes to investigate the foreign intelligence agency.
The NSA had no comment.
Martin Matishak is a senior cybersecurity reporter for The Record. He spent the last five years at Politico, where he covered Congress, the Pentagon and the U.S. intelligence community and was a driving force behind the publication's cybersecurity newsletter.