Mr. Ellis accepted a final job offer yesterday afternoon. NSA continues its work, an NSA spokesman said in a statement. According to a source familiar with the subject, Ellis will begin her new role on Tuesday.
Ellis, who was a lawyer for the NSA, was appointed in November, but the NSA has not yet placed him in that position. The Washington Post and CNN reported Saturday that Miller, who was named assistant secretary of defense after the election, directed Nakasone to appoint him to the post and gave him a deadline of Saturday night.
According to the Department of Defense, the Attorney General of the Department of Defense is solely responsible for selecting candidates for the position of Attorney General of the National Security Agency, as well as for all other senior general attorney positions in the Department of Defense. The NSA Director may not select or approve candidates for the position of NSA Legal Counsel.
The decision is important because the role of the general counsel of the country’s largest intelligence agency is a public service, not a political one, meaning the Biden administration may have trouble removing Ellis from office. The strategy of installing political loyalists in career posts is called burying the government.
The Pentagon declined to comment Saturday as news of the deadline broke.
A few days after Ellis was selected for the job in November, shortly after President Donald Trump fired then-Defense Secretary Mark Esper via Twitter, Democratic Sens. Mark Warner and Jack Reed called for an investigation by the Pentagon’s acting inspector general and stated in a letter that the combination of time, the candidate’s relative lack of experience, the stated qualifications of the other finalists, and press reports of White House involvement suggest that political influence or considerations may have played an improper role in the merit-based selection process for public service candidates.
Before joining the Trump administration, Ellis was a senior adviser to California Representative Devin Nunes, one of Trump’s strongest supporters. Ellis then became a lawyer for the NSC and in 2019 refused to testify in the ongoing impeachment trial of the House of Representatives. In March 2020, Ellis became Senior Director of Intelligence at the NSC and joined other Trump loyalists in key intelligence positions.
When called by The Washington Post on Saturday, Ellis said I don’t talk to the press, thank you, and hung up. CNN could not reach Ellis for comment.
Susan Hennessey, a former NSA lawyer and CNN national security and legal analyst, ripped the decision to install Ellis in the Trump administration last weekend. At this stage, no one should extend the benefit of the doubt to this selection process. The Trump administration is violating public service rules in every way and politicizing a non-political role. If Ellis is installed tonight, Biden should pull him out on day one, she tweeted.
The NSA attorney general is not a Senate-confirmed position, Hennessey said on her Lawfare blog, which eliminates the level of congressional oversight that exists for positions like the attorney general of the CIA, the Pentagon or the Office of the Director of National Intelligence. The purpose of this procedure was to eliminate any political bias in the appointment of a candidate for a key NSA position.
It’s very hard work, very important work, and we have a process to ensure that only qualified people take on this role *BECAUSE* it’s critical to U.S. national security, Hennessey wrote on Twitter.
This story has been updated to include a statement from the Department of Defense.
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