National Security

White House v. Holder

The fight over the government’s top national security lawyer.

In September, President Obama nominated John Carlin, a career federal prosecutor, to run the Justice Department's National Security Division, a senior post whose occupant plays a key role in authorizing secret surveillance operations and managing national security investigations. It was a controversial pick. Not only did some of Carlin's peers think he wasn't the most qualified candidate. Attorney General Eric Holder -- the man who was supposed to be Carlin's boss -- hadn't supported him. Several former officials told Foreign Policy that the attorney general "strenuously" objected to nominating Carlin.

But Carlin had the backing of two senior officials in the White House, who had made it known that he was their preferred choice. In the end, their candidate won out, prompting several former law enforcement and national security officials to decry the nomination as an act of undue political influence over law enforcement decisions.

"I think it is extraordinary and unusual to have someone forced upon an attorney general over his objections," said one former law enforcement official. "The independence of the Justice Department from the White House is institutionally important." Decisions on which cases to prosecute and how to manage criminal investigations are supposed to be made free of political considerations.

Holder had his own list of candidates, which included another career prosecutor who had been his adviser on national security issues and had years more experience than Carlin working on terrorism and espionage cases, officials said. Holder didn't know Carlin well and hadn't worked closely with him.

Ultimately, the decision on whom to nominate for the position is the president's alone. And Holder has since embraced Carlin -- at least in public. But the rocky path to Carlin's nomination, described in interviews with a dozen current and former Justice Department and administration officials, reveals a tense personal and political struggle over one of the most important national security positions in the government.

Carlin's biggest advocates in the White House were Kathryn Ruemmler, the White House counsel, and Lisa Monaco, the president's homeland security and counterterrorism adviser, according to current and former officials. Ruemmler and Monaco had worked with Carlin at the Justice Department and in the U.S. Attorney's Office for the District of Columbia, where all three served at the same time as prosecutors.

Former officials said they are concerned that Carlin, who has been acting in the position since March, doesn't speak as an independent voice for the department, but rather is aligning his positions first with the White House, and particularly with Monaco, thus undermining Holder's authority. Two individuals drew comparisons to John Yoo, the controversial Justice Department attorney in the George W. Bush administration, who was known to have his own relationships with White House officials and was seen as operating outside channels meant to guard against political influence.

"It shouldn't be that way," said a former government official who doesn't support Carlin's nomination. "There should be some walls between the Justice Department and the White House. The White House should not have a direct feed."

Former officials could not point to a specific instance in which Carlin had bowed to White House influence or shared information with Monaco before talking to the attorney general. But they said his close relationship with Monaco has created an impression among many national security lawyers in Washington that Carlin is the White House's inside man at the Justice Department. Carlin became the acting director of the National Security Division after Monaco left the post and went to the White House. He was the chief of staff when she ran the division.

The concerns about Carlin's independence run deeper than that, however. Two former officials, citing conversations with current Justice Department employees, said that Carlin is avoiding taking documented positions before his Senate confirmation hearing. Instead, Carlin has requested that colleagues not copy him on emails about sensitive policy issues. Many of Carlin's communications are taking place by phone, former officials said. A date for a confirmation hearing hasn't been set.

Carlin is not without experience in national security, and he has some of the same credentials as his predecessors in the job for which he's been chosen. He was once chief of staff to former FBI Director Robert Mueller, for example. And he has held two senior posts in the National Security Division.

But several career prosecutors who know and have worked with Carlin say he does not have a firm enough grasp of national security and surveillance law, which is particularly important when approving applications for surveillance warrants in terrorism and espionage cases. Carlin has spent the bulk of his career on computer crime and intellectual property cases, and in prosecuting homicide, sexual offenses, and public corruption, according to his official resume.

By contrast, one of the candidates that former officials say ranked high on Holder's list is Amy Jeffress, who until recently was the department's legal attache in London. From 2009 to 2010, Jeffress was Holder's counselor on national security and international matters, advising him on some of the highest-profile cases in the Justice Department. She worked with Holder to bring a criminal case against Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11 attacks, whom Holder wanted to try in a federal court. (Congress later blocked the move.) Jeffress also set up three inter-agency task forces that reviewed cases of detainees at Guantanamo Bay. She worked for thirteen years in U.S. Attorney's Office for the District of Columbia, where she was chief of the National Security Section overseeing terrorism and espionage cases.

In the contentious nomination process, the balance finally tipped in Carlin's favor when Holder received a phone call from FBI Director Robert Mueller, Carlin's former boss. "Director Mueller weighed in both at [the Justice Department] and at the White House in strong support of John's nomination," said a senior administration official. After the call, Holder dropped his objections to Carlin. President Obama announced his nomination on September 10.

The tussle over Carlin's nomination has had more than just political or personal consequences. In the eight months he has been serving in an acting capacity, Carlin has not been legally able to sign off on surveillance requests before the Foreign Intelligence Surveillance Court, the body that approves secret intelligence-gathering conducted by the FBI and the National Security Agency. Until Carlin is confirmed, Holder and James Cole, the deputy attorney general, have to pick up the slack, because they are the only other department officials authorized to review and sign off on the orders.

Surveillance operations have not lapsed as a result, but given the pressing demands of their jobs, it has been harder to find time to sit down with Holder or Cole to get their approvals, a Justice Department official said. One of them has to review and receive a briefing on each application, which can take as little as five to ten minutes. But those minutes add up. Last year, the government made 1,856 requests to the court for permission to conduct electronic surveillance or physical searches for foreign intelligence purposes. Figures for this year have not been compiled.

But Carlin is still able to perform many of the duties of the position, including consulting with the White House, the FBI, and intelligence agencies. The National Security Division was created in 2006 to tear down barriers between law enforcement and intelligence personnel that had kept them from working together. Today, the law allows White House officials to stay in closer contact with career prosecutors than they would on criminal cases, where barriers are placed to ward against political influence.

"Of course the President's Counterterrorism Advisor and all of her operational counterparts, including at DOJ and FBI, are in regular touch," said Caitlin Hayden, a White House spokesperson. "It is the CT [counterterrorism] Advisor's job to make sure that the interagency is coordinated."

Kenneth Wainstein, who served as the head of the National Security Division and the White House counterterrorism adviser during the Bush administration, said, "It's absolutely critical that the assistant attorney general for national security, who is the head of the intelligence and national security element of the Justice Department, be centrally involved in the interagency process that is run out of the White House."

Wainstein, who knows both Monaco and Carlin, said he could not speak to the nature of their communications today. But he said it would be expected that they'd have frequent conversations and correspondence, including about criminal investigations and intelligence operations, as well as policy. "It's critical for both the effectiveness and the constitutional integrity of our national security program that the Justice Department have a strong voice in the policymaking process," Wainstein said. 

In the months since he's been nominated, whatever distance there may have been between Carlin and Holder seems to have shrunk a bit. Another Justice Department official said that the week before Thanksgiving, Carlin invited Holder to address an all-hands meeting at the National Security Division. The attorney general praised Carlin's leadership and the work of its employees. The division has been under unusual pressure and scrutiny amid investigations of global surveillance operations by the NSA and the FBI, revealed by Edward Snowden.  

The official also said that Holder brings Carlin with him to weekly principals meetings in the White House Situation Room, where the top members of the president's national security team are allowed to bring one member each from their staff.

"He's a tremendous attorney and a strong leader, and is highly regarded in the intelligence community," Matthew Olsen, the director of the National Counterterrorism Center, told Foreign Policy. "He brings a wealth of legal, policy, and national security expertise to the position, and I think he's a terrific choice to lead the [National Security Division]," added Olsen, a former general counsel at the NSA, who was also the acting head of the National Security Division during the presidential transition in 2008.

Among those who have written letters to the Senate Judiciary Committee in support of Carlin's nomination are Tim Murphy, the former deputy director of the FBI; Pat Rowan, the former head of the national security division under President George W. Bush; and Michael Morrell, the former deputy director of the Central Intelligence Agency. Morrell wrote that he'd mostly worked with Carlin during meetings of deputy officials on the National Security Council at the White House, where Carlin was a "backbencher" or stood in for Monaco when she couldn't attend. "He was always prepared, he was articulate and persuasive when he spoke, and he asked excellent questions of the other participants," Morrell wrote. "In addition to his performance, Mr. Carlin certainly has the experience required to do the job."

Hayden, the White House spokesperson, said "We look forward to the Senate confirming [Carlin] as soon as possible." 

Olivier Douliery - Pool/Getty Images)

Exclusive

Home Alone

With Keith Alexander out fighting fires, meet the woman who's really running the NSA.

Recently, after a particularly grueling set of closed-door meetings on Capitol Hill about classified intelligence programs, four senior officials from the National Security Agency (NSA) were driving back to their headquarters when they realized they'd skipped lunch. Fran Fleisch, the NSA's executive director and its third highest-ranking official, had figured they'd be hungry, since their jam-packed schedule left no time to grab a bite. So, she reached into her purse and pulled out bags of popcorn, which she doled out to the NSA's deputy director, the head of legislative affairs, and the general counsel. Her ravenous colleagues gratefully scarfed down the snack.

It was a simple gesture, but one that reflects what Fleisch's coworkers say is an almost maternal instinct to protect her NSA colleagues. She's known for sharp attention to detail and a knack for anticipating what people need -- two qualities that have been especially handy of late. That's because on a day-to-day basis, Fleisch, who has spent her entire career at the NSA, is the person who's actually running the place.

Gen. Keith Alexander, the NSA director, and his deputy, Chris Inglis, along with a number of other senior-level staff are frequently out of the office as the agency grapples with the public and political fallout of the unprecedented series of leaks by former contractor Edward Snowden. They spend much of their time in meetings at the White House; answering questions for lawmakers and congressional staff; giving public speeches and press interviews; and responding to voluminous official requests for information about the agency's programs amid ongoing investigations and reviews. Fleisch is almost never with them when they leave the agency's headquarters at Ft. Meade, Maryland -- the recent day on the Hill was a rare exception. It's her job to stay behind and keep the United States' biggest intelligence agency online while its leaders are putting out fires.

"She is the person who ensures that all the trains are running. Without her, there's no continuity," says a senior intelligence official.

Since June, when the first Snowden disclosures appeared in the press, Alexander and Inglis have testified before Congress and given speeches and interviews at least 22 times, according to public records. In the six months that preceded the first leaks, Alexander testified on the Hill twice, and Inglis not at all. Other public appearances were rare.

But the requests for information from lawmakers and investigators have had senior officials scrambling for months now. Not that the NSA's work has slowed at all. The agency is still in the business of massive data collection and processing, and has had to maintain its focus on the world's hot spots, which have lately included Syria and Iran. "The world has not hit the pause button so [that the NSA] can deal with" the leaks fallout, says Stephanie O'Sullivan, the deputy director of national intelligence.

In the senior leaders' absence, Fleisch leads the NSA's morning meeting, where staff set the priorities for the day and respond to urgent requests for intelligence. "General Alexander [has the] big vision. Fran makes it real," O'Sullivan says. Fleisch acts as the agency's frequent point of contact to her, as well as to the Pentagon's intelligence chief. (Providing intelligence to combat forces is one of NSA's primary tasks.) Ordinarily, these jobs would fall to Inglis, the NSA No. 2. But these aren't ordinary times.

"2013 has been a year for the books," Fleisch said in an interview with Foreign Policy, only the second she has given in her NSA career, which began in 1980. "It's only natural people would think of it in terms of unauthorized disclosures," Fleisch said, referring to the Snowden leaks. But, she added, the agency also had to endure a government shutdown and mandatory budget cuts this year. Fleisch helped craft the plans to keep NSA operations running when some employees were furloughed. Officials say that Inglis, who along with Alexander is planning to retire in the spring, has delegated many of his management responsibilities to Fleisch. Some sources close to the NSA's senior leadership have speculated that Fleisch could take over as the acting director next year before President Obama nominates a permanent replacement.

Colleagues describe Fleisch as a combination of master spy and den mother. When she's not tending to classified intelligence, she is taking the pulse of NSA workers, whose morale has plummeted in the face of heightened scrutiny. Intelligence officials say an increasing number of employees are dusting off their resumes, deleting any references to classified programs and asking for approval to post them on public websites.

"It's tough to turn on the television or open a newspaper and see the actions that you do every day described in a way that you don't recognize," O'Sullivan said. "They know everyone around them is trying to do the right thing."

Fleisch didn't set out for a clandestine career. She studied business at Wharton, and after graduation planned to work on Wall Street. But during a summer course studying Russian, she was visited by an NSA recruiter. Fleisch knew nothing about the agency, but once the mission was described to her, she was intrigued.

"The things that they talked about I hadn't even known were available" to someone with her skills, Fleisch said. She had enjoyed studying languages but hadn't considered applying her translation abilities to espionage. She applied to the agency, and soon found herself working as an analyst and Russian linguist, at the height of the Cold War.

"I fell in love with the mission," Fleisch says. She spent the first decade of her career in operations and then moved into management and up the career ladder. When Alexander was named chief of U.S. Cyber Command in 2010, his portfolio expanded, and he handed off more authorities. He decided to revive the position of executive director, the rough equivalent of a chief operating officer, which hadn't been active at the NSA for 10 years. Fleisch got the nod. "She's the go-to person for Alexander and Inglis, and has been for quite a while," says one colleague.

Fleisch would not discuss in detail the stories about NSA operations that have appeared in the press, but they have clearly affected the way she interacts with employees. At swearing-in ceremonies, where Fleish is often presiding, officials are on-hand to answer questions about what the recruits have read in the press. They've also held a series of town hall-style meetings with employees to respond to allegations and explain how the agency is working to restore its credibility. Alexander and Inglis may the public face of the Snowden affair. But inside the NSA, it's Fleisch. "You walk through the halls with her, and she knows everybody. And more important, they know her," says one co-worker.

To that end, Fleisch said that she had agreed to conduct an interview in order to "lead by example on transparency." She didn't give away any secrets, of course, and was clearly more eager to talk about her employees than herself. And to defend them. She gave no hint of tensions with the administration. But other current and former officials have said that NSA leaders are frustrated by what they see as a lack of forceful, unconditional support for the agency from the White House. While the president has claimed ignorance, the NSA has taken the brunt of scrutiny for intelligence operations that are not limited to the agency.

Fleisch said that the NSA has abided by the laws and rules that govern its mission. "We are very precise in doing only what we're authorized to do ... they pursue their mission in accordance with what they've been asked to do and always legally and with protection of U.S. persons."

She added, "I'm so proud of them."

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