Several people have asked me about this unpleasant news:
The NSA is ‘moving forward’ to install Michael Ellis, a former GOP operative, as its top lawyer. TRUMP DECISIONS ARE A FUNDAMENTAL THREAT TO US NATIONAL SECURITY. THIS IS A POLITICAL HACK IN A CAREER POSITION WITH 48 HOURS TO GO. https://t.co/1KmRM1U6zn
— Barry R McCaffrey (@mccaffreyr3) January 17, 2021
From The Washington Post:
The National Security Agency is “moving forward” to install Michael Ellis, a former GOP political operative and White House official, as the agency’s top lawyer, the agency said Sunday.
The announcement came a day after acting defense secretary Christopher C. Miller ordered the NSA director, Gen. Paul Nakasone, to immediately place Ellis in position as the agency’s general counsel.
Ellis probably will start work on Tuesday, the day before the Biden administration takes office, said several individuals.
Although Nakasone is not the hiring authority — the decision is made by the Pentagon general counsel — by tradition the NSA director weighs in on the selection.
“Mr. Ellis accepted his final job offer yesterday afternoon,” the NSA said in a statement Sunday. “NSA is moving forward with his employment.”
The Pentagon declined to comment.
Ellis was selected under pressure from the White House, people familiar with the matter said at the time. The move drew criticism from national security legal experts as an attempt to politicize a career position.
The good news for all of you is because I’ve been both a supervisory GS 15 (on civilian mobilization orders under the Intergovernmental Personnel Act of Title IV) who assisted the senior leadership of my program in managing it, as well as being a supervisory contractor pay graded as a GS 15, I have a certain amount of experiential knowledge in how all of this works including Federal hiring, personnel management, and personnel management flexibilities. The bad news for all of you is you’re unlikely to be happy with my answers.
Ellis will most likely begin in-processing at NSA sometime on Tuesday, as it is the first day the government opens after the long holiday weekend. I said likely, because a whole bunch of things could delay it a couple of days. But just because he’s in-processing, does not mean he’s actually going to be doing any actual work. He’ll be filling out a lot of paperwork, getting a new common access card (CAC card), things like that. At major commands, which NSA sort of is because it is led by a dual hatted four star, they usually do the security clearance indoctrinations once a week. This is because they have lots of people rotating in on a regular basis, so they schedule one group session once or twice a week, which then frees up the security officers to do the rest of their jobs the rest of the week. Usually you cannot be scheduled for that indoctrination until after your CAC card is issued. So it is possible, if not likely, that even if he begins to in-process on Tuesday some time, he won’t be able to be read on to the NSA’s TS/SCI immediately. When I in-processed at SOCOM for my senior fellowship at JSOU it took about three week’s to get me indoctrinated because the SSO, who is actually a really good guy, was being a SSO.*
The person in charge of this – the clearance indoctrination and read on – is the Special Security Officer (SSO). They do not have a sense of humor. Nor do they like anyone telling them what to do. I missed out on a supervisory contract position at a three letter agency in 2016 because the SSO demanded that my Top Secret (TS) clearance be renewed, which it did not need to be because my Sensitive Compartmented Information (SCI) clearance, which is the higher of the two, was active. We went ahead and started the renewal for the TS, a new interim TS was issued within 48 hours, which gave me an active interim TS and an active, fully adjudicated SCI. He still refused to allow me to be read on. Now the requirement was that my TS be fully adjudicated. This was contrary to the law and the regulations, but he wouldn’t budge. My TS was renewed in record time, 11 months, but by then the position had to be filled and the prime on the contract found someone less well qualified.** So the SSO will determine when Ellis gets read on. This is NOT if Ellis gets a clearance. He already has one from being the Deputy White House Counsel for National Security. It is solely about getting him indoctrinated and read on to the NSA’s clearance.
So what can be done? Well… GEN Nakasone can play hard ball, delay things on Tuesday until after President-elect Biden is sworn in on Wednesday, which means Chris Miller is no longer illegally serving as the Acting Secretary of Defense, and then just put his foot back down again and refuse to allow Ellis access to the building until the Biden team sorts everything out.
However, I think what is more likely is that Ellis will begin in-processing on Tuesday or some other time this week and then, because this is a Senior Executive Service (SES) career position, and there are questions about how the search was conducted, he’ll simply be reassigned. By reassigned it means he’ll still be an SES, we’ll still be paying his salary, but he’ll be responsible for providing legal advice to the people who restock the snack bar at the NSA building. SESes get reassigned all the time. They could reassign him to a radar intercept station in Alaska and then it is up to him to either accept the transfer or quit. The other option is they just give him nothing to do. Basically he gets an office and that’s it. They just directly bypass him until they can sort out if there were hiring irregularities and then they either are able to remove him or if they can’t they reassign him or freeze him out until he quits in frustration. This turns his hiring into waste, fraud, and abuse, but it is far better than letting one of Devin Nunes proteges serve as the general counsel for the NSA.
What is not going to happen is this:
Never fear General. Monday is a day off so he starts Tuesday 0900 for In processing briefings up at Fanx. Also there is the small matter of actually passing a REAL full spectrum lifestyle/CI polygraph first soooo they should be able to inform him he’s fired at 12:01 Wednesday. https://t.co/jyKEapphfC
— Malcolm Nance (@MalcolmNance) January 17, 2021
Ellis already had to pass a fill spectrum lifestyle and counterintelligence (CI) investigation and polygraph when he was awarded his clearance to be the Deputy White House Counsel for National Security. Top Secret clearances are currently good for seven years. There is not, despite what people will tell you, an actual expiration date for SCI clearances, but they are functionally good as long as you are read on to an agency’s, department’s, office’s, bureau’s, and/or command’s sensitive compartmented information clearance or for two years. Why two years? Because the Joint Personnel Adjudication System (JPAS) is programmed to drop an individual’s SCI out of the system after 24 months if they are not listed as active in the system. The only clearance related delays you might see here is the SSO not jumping through his or her grommet to expedite Ellis’s indoctrination session.
Short answer: it’s complicated, but Ellis will become a career SES this week. Whether he actually is ever given anything productive to do other than providing legal guidance to the person who restocks the straws next to the soda machine in the NSA snack bar is the real question. I guarantee that the Biden-Harris DOD and Intel transition teams are aware of this as it has been widely reported and have a plan to ensure that if Ellis does indeed start this week, he’ll be quickly sidelined until they can figure out how to either permanently reassign him were he can’t cause problems or they can vacate the hire.
The bigger problem is we don’t know exactly how many other of these Trump loyalists have been burrowed into the career civil service from political appointments. I’ve seen reporting that indicates at least/approximately five over the past six months. And the most disturbing one, other than Ellis, is a senior political appointee at the Office of Personnel Management (OPM) was burrowed into a career SES position there. That person was not identified in the reporting, but whomever it is, that person is going to have to be isolated, reassigned, and/or terminated.
* One of the issues is that the SSO shop at SOCOM demanded paperwork they were not legally entitled to in order to process me for indoctrination. This held things up by just long enough to miss the first possible date for me to be indoctrinated. Then they said it would take at least a week to process this paperwork that they were not legally entitled to, which meant the earliest I could be indoctrinated was during the third week after my arrival. What paperwork did they want? Paperwork that disclosed all relationships with foreign military and/or governmental personnel. Which the paperwork I’d already submitted clearly stated, after you check the box that yes you do have a relationship with foreign military and/or governmental personnel if said relationships are the result of your duties for the US government, then they do not have to be fully disclosed with the additional paperwork. There is then a box to check indicating if this was the result of official duties for the US government, which it was, so I checked it and I then explained this in the box provided to do that by narrative answer. I wound up having to fill out the same form 15 times to account for every foreign officer I either taught, supervised, are was assigned with at USAWC, which pretty much ate most of a day. My favorite part of these was “please provide a physical description”. Because someone from Tampa was going to fly out to Nepal or Kuwait or Israel or Germany or New Zealand or Kenya and try to find them based on my description. My Kenyan Army students are both Masai warriors. So I wrote “Traditional Masai features”. I honestly hope they actually looked these people up, because a former student was, by that time, the Director of Pakistan’s ISI, which made him one of the most powerful people in Central and Southeast Asia.
** In retrospect I probably should have hired a national security lawyer ASAP and let them kick the SSO in the butt to get this resolved in my favor, but by the time it because clear that the SSO was going to hold me up no matter what the law and the regs said, let alone what we submitted to him, the government had to have the position filled and the prime had to find someone else. Which was a real shame as the position description looked like it was written off of my CV, I’d actually done this type of work before in a supervisory capacity, and they’d spent over 6 months, at the point that the prime mentioned it to my boss and he said “I’VE GOT THE GUY WHO WROTE THE MANUAL ON THIS!!!!”, trying to find someone to fill it to no avail.