When Keith Alexander stepped down as head of the NSA, he raised eyebrows "pitching his services for as much as $1 million a month" as a consultant for companies that would benefit tremendously from classified information that he possesses. At best, he'd be monetizing expertise gained on the public dime to enrich himself.
Representative Alan Grayson, a Florida Democrat, expressed his worries in a letter. "I am writing with concerns about the potential disclosure of classified information by former National Security Agency Director Keith Alexander,” he wrote. “Disclosing or misusing classified information for profit is, as Mr. Alexander well knows, a felony. I question how Mr. Alexander can provide any of the services he is offering unless he discloses or misuses classified information, including extremely sensitive sources and methods. Without the classified information that he acquired in his former position, he literally would have nothing to offer to you.”
Investigative journalist Jason Leopold, who specializes in Freedom of Information Act requests, decided to look more closely at Alexander's behavior. For decades, American officials have been compelled to file paperwork regarding their income and investments. The idea is to lay bare all financial conflicts of interest, making corruption less attractive and more likely to be caught.
But the NSA turned down Leopold's request. In a lawsuit seeking to compel the release of the Alexander documents, Leopold argues that they're being withheld unlawfully. Under the Ethics in Government Act of 1978, the NSA has "a mandatory, non-discretionary duty to produce the requested records," his complaint states.
As a matter of law, Leopold is, in fact, entitled to Alexander's financial disclosure forms unless one individual, the president of the United States, decides to suppress them. The law articulates this lone exception as follows:
... this section does not require public availability of a report filed by any individual in the Office of the Director of National Intelligence, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, or the National Security Agency, or any individual engaged in intelligence activities in any agency of the United States, if the President finds or has found that, due to the nature of the office or position occupied by such individual, public disclosure of such report would, by revealing the identity of the individual or other sensitive information, compromise the national interest of the United States ...
There is good reason for the exception. If I could request the financial disclosure forms of every CIA agent, for example, maintaining cover would be impossible. In Alexander's case, however, "revealing the identity of the individual" is not an issue. And as Leopold states in a complaint letter, "The letter denying Mr. Leopold’s request for financial disclosure statements did not indicate that the President had in fact made a finding that, due to the nature of the office or position of the Director of the National Security Agency, the identity of the individual or other sensitive information, compromise the national interest of the United States. Instead, the letter simply cites the exemption provision of the statute. It is not the case, however, that 5 USC app. § 105(a)(1) automatically exempts every employee of the NSA from the public disclosure requirement, and hundreds of NSA employees annually file publicly available financial disclosure forms. Absent evidence of a waiver, public disclosure is required."
The matter thus comes down to Obama's interpretation of a single clause.
The American people are entitled to see Alexander's financial conflicts of interest unless Obama himself declares that revealing them would somehow "compromise the national interest of the United States." Would Obama do so, despite pledges to run the most transparent administration in history? Sadly, those pledges stopped being credible a long time ago. It is nevertheless worth noting what Obama would be saying if he helps suppress Alexander's paperwork: that the national interest would be more imperiled by the public knowing how an extremely powerful government official earned money outside of his official duties than by that very powerful man, with a head full of classified information, selling his services to the highest bidder without meaningful public scrutiny.
Obama ought to face tremendous pressure to let the records be revealed, particularly given the suspicion-raising story Alexander is telling about his business plans.
At the Aspen Ideas Festival, I questioned Michael Hayden, former head of the CIA and NSA, about the eye-popping sums Alexander was reportedly seeking from private industry:
Should we be worried that high-ranking people with security clearances are monetizing their access to classified information or even selling it to corporations that hire them? Would he worry if he heard this about a retiring NSA director a couple administrations from now? After all, if they were profiting by revealing classified material to corporate clients, how would one even catch them doing it? As a former national-security official who is now a principal at The Chertoff Group, I figured he would at least have an opinion.
Hayden agreed that, in theory, one might legitimately worry about that, but quickly assured me that as someone who knows Alexander he can vouch for his character, even if he didn't expect a journalist who didn't know him to treat that as persuasive. He also said that he purposely refrains from getting classified updates from national-security agencies while working in private industry, and that something he knows about the NSA, but that I don't, would assuage some of my concerns.
Days later, Bloomberg News reported that the Securities Industry and Financial Markets Association is proposing "a government-industry cyber war council," and that "Sifma has retained former NSA director Keith Alexander to 'facilitate' the joint effort with the government. Alexander, in turn, has brought in Michael Chertoff, the former U.S. Secretary of Homeland Security, and his firm, Chertoff Group."
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