NSA Has Been Without a Top Lawyer Since October 2009

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Tuesday, June 08, 2010 at 4:50 pm

Some more details following yesterday’s story about the National Security Agency looking for a new top lawyer. As it turns out, the super-secret surveillance agency has been without a top-level legal adviser for about nine months.

According to an “NSA spokesperson” who insisted on anonymity — you would think the job of a spokesperson is to speak openly to the media, but that’s NSA for you — Vito Potenza, the NSA’s last general counsel, retired from the agency in October 2009.

If Potenza’s name makes you say, “Don’t I know that guy from the sordid history of the Bush administration’s warrantless domestic surveillance programs?” then you might be a particularly attentive reader of Bart Gellman’s book Angler, an investigative biography of Dick Cheney’s vice presidency. One particularly vivid section of the book recounted the aftermath of a December 2003 request from Potenza, then the agency’s acting general counsel, and the agency’s inspector general to review the legal documentation undergirding the controversial surveillance activities. David Addington, then Cheney’s lawyer, actually screamed at the guy.

So Potenza has been out for the past nine or so months. I didn’t get an answer about the circumstances surrounding his retirement. But since he’s been gone, “the duties of the general counsel have been covered by seasoned, senior attorneys in NSA’s Office of the General Counsel,” the spokesperson said. And presently, “NSA is conducting a comprehensive search for stellar candidates who embrace its mission to protect America’s national security systems and produce foreign signals-intelligence information.”

As a veteran intelligence observer told me yesterday:

“The absence of a general counsel introduces a shade of uncertainty into the process which needs to be correct,” said Steve Aftergood, an intelligence policy expert at the Federation of American Scientists. “NSA operations are law-intensive activities. They don’t make a move without clearing it with their legal people.”

The spokesperson did not address a question I had about whether and how the absence of a general counsel affects day-to-day surveillance activities by the agency.

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