Matthew Waxman, a law professor and former senior national security official in the George W. Bush administration, has been tapped to be the next general counsel for the National Security Agency, sources familiar with the matter told The Daily Beast on Friday.
As the chief legal adviser to the NSA director, the general counsel is on the agency’s senior leadership team and runs an office of more than 100 attorneys who provide legal advice and guidance on surveillance operations. In the wake the Edward Snowden leaks, the general counsel has also been tasked with speaking publicly about the NSA’s actions and defending their legality.
Waxman’s selection hasn’t been announced publicly, but sources told The Daily Beast that he is in the process of gaining security clearance. Waxman declined to comment.
“He has a deep background in security issues and a reputation for care and moderation in analyzing the legal questions that national security raises,” Stewart Baker, a former NSA general counsel and now a partner at the law firm Steptoe & Johnson, told The Daily Beast.
Matthew Olsen, who also served as the NSA’s general counsel and was later the director of the National Counterterrorism Center, called Waxman “a rigorous thinker who will be an independent voice at the agency.”
The general counsel is not a political appointee and isn’t confirmed by the Senate. National security lawyers see it as one of the more coveted posts in government, in large part because of the complex legal issues involved in surveillance operations, and competition for the job is often fierce. Former occupants have come to the NSA from senior positions in the White House and the Justice Department, and they’ve gone on to top posts at law firms or have become security consultants.
Waxman would join the NSA at a pivotal moment. Congress is currently considering changes to the Patriot Act that would modify the agency’s program of collecting Americans’ phone records. That program, which was revealed by Snowden’s leaks, has stoked a now two-year-old debate over the lengths to which U.S. intelligence and law enforcement agencies should be allowed to go when collecting information on American citizens. On Thursday, a three-judge panel for the Second Circuit Court of Appeals ruled that the Patriot Act does not authorize the phone records program.
Waxman is highly regarded by his peers within national security law circles. He’s probably best known for his efforts to ensure that U.S. detainees were treated in accordance with the Geneva Conventions, when he was in charge of detainee policy at the Defense Department during the Bush administration. Waxman famously clashed over the issue with David Addington, former Vice President Dick Cheney’s chief of staff and top legal adviser, and a key architect of some of the Bush administration’s most controversial counterterrorism progress.
In a lengthy profile of Addington for The New Yorker in 2006, journalist Jane Mayer wrote that “Waxman believed that international standards for the humane treatment of detainees should be followed, and argued for reforms in the Army Field Manual. He hoped to reinstate the basic standards that are specified in the Geneva Conventions. This meant the prohibition of torture, overt acts of violence, and ‘outrages on personal dignity, in particular humiliating and degrading treatment.’”
Waxman’s position apparently didn’t sit well with Addington, who Mayer says “accused Waxman of wanting to fight the war on terror his own way, rather than the President’s way.” After the blowout with Addington, Waxman moved from the Pentagon to the State Department, where he served as a senior policy official for then-secretary Condoleezza Rice. In 2007, he left government and became a professor at Columbia Law School.
Waxman continued to be an outspoken voice on detainee issues.
In a 2010 New York Times article, he criticized the Obama administration for choosing to first prosecute Omar Khadr under revamped rules for military commissions. Khadr, who was 15 when he was captured by U.S. forces, pleaded guilty to war crimes in 2010, including the murder of Sgt. Christopher Speer in Afghanistan eight years earlier. But his case drew criticism in large part over whether it was appropriate to prosecute a child soldier, and because of the coercive nature of Khadr’s interrogation.
“There is a great deal of international skepticism and hostility toward military commissions, and this is a very tough case with which to push back against that skepticism and hostility,” Waxman told the Times.
Khadr was eventually repatriated to Canada, where he was born, and was released on bail this week while he appeals his conviction in the military tribunal.
Waxman would join a list of NSA general counsels who have come from outside the agency, including his predecessor, Rajesh De, who was the White House Staff Secretary before he joined the agency’s senior ranks. De stepped down in March and is now running the cyber security practice at the law firm Mayer Brown in Washington.
Waxman earned his law degree from Yale Law School and clerked for Justice David Souter on the Supreme Court, as well as Judge Joel Flaum on the U.S. Court of Appeals for the Seventh Circuit. He was also a Fulbright Scholar to the United Kingdom. Prior to working at the Pentagon, he served on the National Security Council staff from 2001 until 2003.
The NSA declined to comment for this article.