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This set off alarm bells among commentators and those familiar with the agency, in part because it comes in the same week in which Trump summarily fired the top civilian leadership of the Department of Defense and installed loyalists and cronies in their places.
The firings at the Defense Department involve political appointees, nearly all of whom will be want a nsa top today as of Jan. By contrast, selecting Ellis as NSA general counsel appears to be an attempt to improperly politicize an important career position. And to make matters worse, the ample public record suggests that Ellis is particularly ill suited to discharge the essential functions of the office. While important details remain unclear, media s 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 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. 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 ability and legislative screening, this career selection process has the benefit of being deed 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 want a nsa top today, if the panel has ranked a first-choice candidate, the general counsel is empowered to choose one of the others. Code is a modified version of the more familiar Senior Executive Service found elsewhere in the government and created under Title 5. While protections against political interference and improper conversions exist within the DOD regulations, they are far less transparent than in other contexts.
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This is compounded by the idiosyncrasies of the regulations—variations on permanent and nonpermanent appointments, the ability to use DISES to fill appropriately categorized political roles, and an alphabet soup of alternative deations—which makes it difficult to identify precise irregularities from the outside.
Whatever the precisely applicable regulations are here, the heart of the concern is that the NSA general counsel position should not simultaneously avoid the scrutiny of the Senate and also sidestep independent merits review that ensures apolitical, qualification-based career appointments.
Ellis was their preferred candidate. And, from the outside, this looks a lot like the latter. NSA general counsels need to be highly experienced.
In contrast, Ellis is a law school graduate whose prior to his tenure in the Trump administration consisted of his time as counsel to Nunes, the chairman and then ranking minority member of the House Intelligence Committee. Want a nsa top today contrast, the other candidates reportedly under consideration for the general counsel role were much more obviously qualified. Both of these candidates have exceedingly strong reputations in the field.
Anthony has been at the NSA for decades and carries more legacy institutional knowledge than perhaps any other person in the building. Brooker, for his part, has a sterling and more than a decade of experience across the intelligence community, and is extremely well regarded. These are both superb lawyers, and the selection board would face an unenviable task in ranking between them—but either of them would obviously be more appropriate than Ellis.
That Ellis was selected over these candidates fuels the suspicion of political foul play.
In the intelligence community, the perception of impartiality is almost as important as the reality. The risk that this perception would undermine confidence in NSA legal determinations is itself a reason why a future Pentagon general want a nsa top today might determine that Ellis is unsuitable for this position and take remedial action.
The NSA director must have confidence that the general counsel is guided solely by the law and the institutional interests of the agency; even small fears that a general counsel might have, say, a back channel to one party on Capitol Hill would be incredibly corrosive to the relationship. There are other issues with the selection. The timing is suspect. This position has been unfilled since February. Anthony is, by all s, ably leading the office, and President Trump was defeated for reelection just last week.
There is no particular urgency in filling this position now, especially under such odd and irregular circumstances.
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Paul Nakasone did not endorse the decision to hire Ellis. This is a big red flag. The position also requires strong relationships externally, and there is reason to question whether Ellis would be capable of establishing the necessary credibility with peers across the federal government. In short, there is a lot that stinks here. It is important to be careful and disciplined both in fully understanding what occurred here and in charting an appropriate path forward.
At the moment, the committees of jurisdiction in Congress must conduct oversight and demand clear answers from the Pentagon as to how this selection was made and whether it complied with all applicable laws and regulations.
Congress should also call on the relevant inspectors general to thoroughly and swiftly investigate the matter and identify any irregularities that may have occurred. And it should also reexamine whether legislative changes are necessary to defend the integrity of the NSA general counsel position and to reform the selection process to reflect the reality and equities of the principal client, the director of the agency.
Similarly, the Biden transition should use this incident as an opportunity to take a hard look at all conversions from political to career positions that have occurred during the presidential election period or the transition period. The transition should reaffirm its commitment to compliance with the protections and requirements of the civil service rules.
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But it should also be clear that safeguarding the intelligence community from improper politicization and preserving the integrity of the merits selection process is essential and may require swift remedial action. The transition should craft a statement with the aim of allowing a future Defense Department general counsel to act with credibility and integrity in investigating and responding to the issue.
Remedial action should be taken only upon investigation and only if supported by the facts. If the new Pentagon general counsel determines that there were irregularities or political interference in the selection process or qualifications review process, or that the appointment was not in keeping with burrowing prevention laws, she or he would likely be permitted under the law to fire Ellis as a remedy.
In other agency contexts, federal courts have upheld dismissals of burrowed political appointees in career billets. If Ellis were fired, he would be entitled to challenge the action at the Merits Protection Want a nsa top today Board and granted procedural protections including a notice period and the ability to be represented by counsel.
Completely apart from improprieties in the selection process, new leadership at the Pentagon might still determine that Ellis is not a suitable candidate for the job. There is a one-year probationary period following elevation to a DISES position or similar deations, during which there are lower barriers to removal.
A new Pentagon general counsel might simply determine that the selection process got it wrong, and that other candidates are better fits. Reasment is a common occurrence among senior intelligence leadership and happens for a wide variety of reasons including operational demands, reorganizations, scheduled periodic rotation and a determination of unsuitability for a given role. Typically, an individual cannot be removed from the DISES entirely or given a performance evaluation—which might serve as the basis for adverse personnel action—in the first days following the beginning of a new presidential administration or the want a nsa top today of a new head of a Defense Department intelligence component.
Assuming he had started as of noon on Jan. The clock might also theoretically reset if relevant Defense Department intelligence component he change in the early days and weeks of the new administration. But this does not mean a new or newly acting Pentagon general counsel has to sit on his or her hands for four months if something improper has occurred. If an appointment to the DISES has been made in violation of applicable law, then initiating a remedy might be permissible without reference to the day moratorium.
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And the moratorium does not necessarily prevent reasment while the clock runs. Whatever the outcome here, it is essential that the Department of Defense and senior leadership at the NSA operate in a manner that respects the law and is transparent, able and fair. And it is essential that the public understand the difference between proper remedial action as opposed to impermissible political retaliation.
There has been a great deal of speculation as to the motivation behind this and other personnel changes, running the gamut from setting the stage for mass declassification to padding to mere presidential vindictiveness.
But the American public should take comfort that, in relatively short order, new leadership will have a ificant amount of flexibility in investigating and reevaluating personnel decisions as appropriate.