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.