WASHINGTON
– U.S. Sens. Chuck Grassley (R-Iowa), Joni Ernst (R-Iowa) and Tom Cotton
(R-Ark.) are seeking an expanded investigation of the circumstances leading to
the placement of National Security Agency General Counsel Michael Ellis on
administrative leave, following public reports that raise concerns of political
pressure from the new administration.
Ellis
began the process of assuming his new duties on January 19, after an exhaustive
and apolitical selection process for career officials and a decade-long career
with a security clearance. The very next day, after a new administration was
sworn in, Ellis was informed without explanation that a security inquiry was
opened. These circumstances suggest the security inquiry may have been
initiated based on political pressure from the new administration rather than
any legitimate security concern.
“Placing
qualified individuals on administrative leave and subjecting clearance holders
to security inquiries is an extraordinarily serious matter that can create a
life-long negative impact on a person’s career and therefore can only be done
on the surest foundation. The publicly reported fact pattern raises serious
questions about whether the Defense Department and NSA properly followed all
laws, rules and regulations with respect to the administrative actions against
Ellis,” the senators wrote.
In
their letter to Department of Defense Acting Inspector General Sean O’Donnell,
the senators are requesting that the watchdog office expand the scope of any
ongoing review to include the circumstances behind the NSA placing Ellis on
administrative leave and opening a security inquiry.
Full
text of the senators’ letter follows or can be found
HERE.
Dear Acting
Inspector General O’Donnell:
We write
to express our concern regarding the January 20, 2021 decision by the National
Security Agency (NSA) to place its career General Counsel, Michael Ellis, on
administrative leave. The Biden
administration’s decision to place Ellis on leave appears to be politically
motivated and we request that you begin a review of the facts, circumstances
and process that the administration used to justify their decision to place him
on administrative leave.
Publicly
available information indicates that Mr. Ellis was selected for his career
position through a lengthy, rigorous, and fair process. The General Counsel position was advertised
publicly in January 2020, a career panel of lawyers found Ellis to be qualified
for the position before any political appointee was involved in the process,
and he was interviewed by a panel that included a career intelligence lawyer.
[1] Moreover, his service as a political
appointee does not disqualify him from the NSA General Counsel position. The two prior General Counsels of NSA served as
political appointees before their service at the Agency. Mr. Raj De, General Counsel from 2012 to
2015, had served as Staff Secretary under President Obama, and Mr. Glenn
Gerstell, General Counsel from 2015 to 2020, was appointed by President Obama
as a member of the National Infrastructure Advisory Commission. Unlike Ellis, neither had significant
experience working with the Intelligence Community before their appointment at
NSA.
[2]
Public
reports also suggest that NSA may have attempted to subvert the merit system principles
by refusing to appoint Ellis after his selection. Ellis was selected for the position in
November 2020, and reportedly successfully completed his NSA’s polygraph
examination, psychological screening, and background investigation in early
December 2020, yet NSA did not move forward with his appointment.
[3] Even after the Office of Personnel Management
determined that it did not have the authority to review NSA appointments—a
conclusion that should have been clear from prior NSA General Counsels who held
politically appointed positions—NSA reportedly did not move forward with Ellis’s
appointment.
[4] According to public reports, unlike for prior
Obama-era General Counsel appointments, NSA demanded additional written
approvals before appointing Ellis.
[5] Reports also indicate that NSA refused to
abide by the selecting authority’s decision until ordered to do so by the
then-Acting Secretary of Defense, a step that may have constituted “a violation
of merit system principles and processes” by NSA leadership.
[6]
NSA may also
have unlawfully retaliated against Ellis by initiating a security inquiry of
Ellis. According to public reports,
Ellis has held a security clearance for more than a decade without incident,
serving in senior intelligence roles in Congress and at the White House.
[7] On January 19, 2021, as part of his new
employee in-processing, NSA granted Ellis a Top Secret/Sensitive Compartmented
Information (SCI) security clearance. At
that time, NSA had in its possession all relevant facts regarding Ellis’s
handling of classified information. Yet merely
one day later, in the afternoon of January 20, 2021, NSA informed Ellis for the
first time and without any explanation that there was a security inquiry with
respect to his handling of classified information. This highly unusual sequence of events
suggests that NSA initiated its security inquiry on the basis of political
pressure from the newly installed Biden administration, not any legitimate
security concern.
Placing
qualified individuals on administrative leave and subjecting clearance holders
to security inquiries is an extraordinarily serious matter that can create a
life-long negative impact on a person’s career and therefore can only be done
on the surest foundation. The publicly
reported fact pattern raises serious questions about whether the Defense
Department and NSA properly followed all laws, rules and regulations with
respect to the administrative actions against Ellis.
We
understand that the Inspector General (IG) of the Department of Defense may be reviewing
the Department’s process of selecting and hiring Ellis. Accordingly, we request that the scope of the
ongoing review be expanded to include the facts, circumstances and process by
which NSA decided to place Ellis on administrative leave and open a security
inquiry. We further request rolling
updates from you on the status of such review or other inquiry into the selection
and hiring of Ellis, including if any evaluation or other inquiry has concluded.
Thank you
for your attention to this important matter.
Sincerely,
-30-
[1] Mollie Hemingway, “Breaking Norms
and Precedent, Biden Attempts to Purge Career Intelligence Official,” The
Federalist, Jan. 22, 2021.
[2] Id.; Ellen Nakashima, “NSA Is
‘Moving Forward’ To Install Michael Ellis, a Former GOP Operative, as its Top
Lawyer, the Agency Said,” Washington Post, Jan. 17, 2021.
[3] Mollie Hemingway, “Breaking Norms
and Precedent, Biden Attempts to Purge Career Intelligence Official,” The
Federalist, Jan. 22, 2021.
[4] Id.; Kristina Wong,
“Democrats Attempt to Purge Civil Servant from Job Over Prior Work for Nunes,
Trump Administration,” Breitbart News, Jan. 23, 2021.
[5] Julian Barnes and Michael S.
Schmidt, “N.S.A. Installs Trump Loyalist as Top Lawyer Days Before Biden Takes
Office,” New York Times, Jan. 17, 2021.
[6] Patrick Turner, “Biden’s NSA May
Face Legal Fight Over Trump-Installed Lawyer,” DefenseOne, Jan. 19, 2021.
[7] Mollie Hemingway, “Breaking Norms
and Precedent, Biden Attempts to Purge Career Intelligence Official,” The
Federalist, Jan. 22, 2021.