NSA Announces New GC, Cites Big Law Experience

On Monday, the National Security Agency tapped retired Milbank partner Glenn Gerstell as its new General Counsel.

“His extensive background in managing a global law firm ... will provide a fresh perspective that will serve to benefit our mission,” NSA director Adm. Michael S. Rogers said in a press release.

[caption id="attachment_3725" align="alignleft” width="334"][Image “Gerstell at his swearing in ceremony.” (src=https://bol.bna.com/wp-content/uploads/2015/08/Gerstell-e1438798658809.jpg)]Gerstell at his swearing in ceremony.[/caption]

Since July, however, questions have been percolating about whether Gerstell’s Big Law experience serves as adequate qualifications to lead the NSA’s legal department: That’s when the Daily Beast first reported he was in line for the position in an article that described him as unknown name among national security lawyers. It also noted Gerstell had bundled at least $50,000 in contributions for President Obama’s 2012 reelection campaign.

The NSA declined to make Gerstell available for comment but Milbank chairman Scott Edelman issued a statement calling him amply qualified.

“Glenn will be a tremendous resource for the National Security Agency,” said Edelman. “He is a vastly experienced advisor on technology, cybersecurity and infrastructure and has a natural gift for managing people and carrying out policy.”

Gerstell spent 39 years at Milbank, including 18 as managing partner of its Washington, D.C. office, where he also headed the firm’s global communications and India practices before his retirement in June.

He focused on acquisitions and commercial transactions, representing debt and equity investors and advising on cross-border infrastructure development projects and M&A in emerging markets in Asia and Latin America. Previously, he also managed the firm’s Singapore and Hong Kong offices.

In Washington, however, Gerstell served on the National Infrastructure Advisory Council and on DC’s Homeland Security Commission — where he wrote a report on cybersecurity in 2013 — and on its Water and Sewer Authority. Before he retired from Milbank, earlier this summer, he headed the firm’s global communications and was managing partner of its Washington, D.C. office.

At the NSA, Gerstell will supervise around 100 lawyers, advise the NSA director, and act as a public spokesman.

His predecessor also hailed from Big Law: Rajesh De, who has returned to Mayer Brown, told an audience at the Big Law Business Summit in mid-July that he didn’t have any surveillance or fourth amendment experience when he started as GC of the NSA in 2012.

In his prior position, De served as staff secretary to President Obama, managing the president’s paper work. Switching to the NSA was supposed to restore some work life balance, but it didn’t work out that way, he said. He described his responsibilities as overseeing a legal department that obtains patents, uses government contractors, and provides advice on the federal government’s foreign intelligence and cyber defense missions.

“One thing that surprised me is the operational tempo of the legal office at NSA ... it provides real time intelligence to men and women on the battlefield,” said De.

On his decision to take the job, he said:

I talked to some colleagues and mentors around DC [and asked] is this something that I should be nervous about doing? And I got two pieces of completely contradictory advice, both of which turned out to be spectacularly wrong, but not for the reasons that you’ll think in a minute.

The first piece of advice was ‘Don’t be nervous at all. Everything they do is secret, so if you mess up, nobody’s ever going to know.’ And the second piece of advice was, ‘You should be really nervous, because everything they do is secret, and you’re the last line of defense, if you approve something, some huge operation is going to happen and if it goes wrong everyone’s going to look at you through the lens of history.’ Now both of those pieces of advice proved to be very wrong, not because Snowden would come along and there’d be a lot more public discussion about NSA ... but because the NSA is a highly regulated entity. I would make the case that it’s actually one of the most highly regulated entities in the world.

De goes on to argue the NSA is highly regulated by eight committees in Congress, an Inspector General, the White House among other agencies, and regularly produces reports to Congress.

He also speaks about the cyber threats in a more general manner (Starting around the 14-minute mark). We’ll let you check out the video, and make your own decisions about whether managing a Big Law office is strong preparation for managing the legal office of the NSA.