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Pentagon chief orders NSA to install lawyer

Acting Defense Secretary Chris Miller takes part in a virtual call from the Pentagon, Washington, D.C., on Jan. 4, 2021.

LISA FERDINANDO/DEPARTMENT OF DEFENSE

By ELLEN NAKASHIMA | The Washington Post | Published: January 17, 2021

WASHINGTON — Acting defense secretary Christopher Miller ordered the director of the National Security Agency to install on Saturday a former GOP political operative as the NSA's top lawyer, according to four individuals familiar with the matter.

It is unclear what the NSA will do. The agency and the Pentagon declined to comment.

In November, Pentagon General Counsel Paul Ney Jr. named Michael Ellis, then a White House official, to the position of general counsel at the NSA, a career civilian post at the government's largest and most technologically advanced spy agency, The Post reported. He was selected after a competitive civil service competition. He has not taken up the job, however, as he needed to complete administrative procedures, including taking a polygraph test.

Reached by phone Saturday, Ellis said, "I don't talk to the press, thank you," and hung up.

Miller gave NSA Director Paul Nakasone until 6 p.m. Saturday to install Ellis in the job, according to several people who spoke on the condition of anonymity because of the matter's sensitivity. The 6 p.m. deadline passed without Nakasone taking action. It was unclear Saturday evening what the Pentagon's next move would be.

Nakasone was not in favor of Ellis's selection and has sought to delay his installation, according to several people.

Ellis's naming, made under pressure from the White House, drew criticism from national security legal experts. It "appears to be an attempt to improperly politicize an important career position," wrote Susan Hennessey, a former lawyer in the NSA Office of General Counsel, on Lawfare, where she is the executive editor.

The move is troubling, coming as it does four days before President Donald Trump leaves office and the Biden administration takes over, former U.S. officials said. The move makes it more difficult for the Biden administration to immediately replace him, the former officials said.

"An 11th-hour move like this and a directive from the acting secretary of defense is overwhelmingly strong evidence of irregularity," Hennessey said Saturday. "Unless the acting secretary of defense can produce a compelling rationale . . . the Biden team should remove this individual on Day 1."

There also were concerns about Ellis's qualifications for the job, according to several people. One individual said that those issues included the possibility that he was picked over candidates who scored higher during the interview process.

Pushing back against critics, one U.S. official said that the two prior NSA general counsels had ties to the Obama administration. Glenn Gerstell, who retired a year ago, raised $50,000 for the Obama campaign in 2012, he said. And Gerstell's predecessor, Raj De, was White House staff secretary in the Obama administration prior to arriving at the NSA.

The concern of Nakasone and others, current and former officials said, is that the White House is seeking to "burrow" Ellis into the job in violation of a long-standing policy that prevents embedding political personnel into career civilian positions prior to a change in administration.

Nakasone recently got a verbal indication from the Office of Personnel Management that the policy did not apply to intelligence community employees, according to one U.S. official. On Thursday, he requested a written legal opinion on that point, according to two officials. He has not yet received that written opinion, the officials said.

Ellis previously was chief counsel to Rep. Devin Nunes, R-Calif., a staunch Trump supporter and former chairman of the House Intelligence Committee. Ellis joined the White House in 2017, when he became a lawyer on the National Security Council and in 2019 he was elevated to senior director for intelligence.

The Washington Post's Julie Tate contributed to this report.