How the NSA Scandal Is Roiling the Heritage Foundation

Ever since ex-senator and Tea Party kingmaker Jim DeMint took over the Heritage Foundation earlier this year, mainstream Republicans have been fretting that he’d turn the prominent conservative think tank into a political proxy for the most extreme elements of the GOP. The debt-deniers and defund-Obamacare die-hards who propelled the government into a shutdown have found a political, if not quite intellectual center of gravity at Heritage. Now, hawkish Republicans who have long embraced strong national security authorities have reason to believe that Heritage is mounting an opposition on that front, too.

Recently, Heritage refused to publish two papers about the National Security Agency’s surveillance programs written by a prominent conservative attorney. Why? Because he concluded that the programs were legal and constitutional, according to sources familiar with the matter. It was a surprising move for a think tank that has supported extension of the Patriot Act — which authorizes some of NSA’s activities — and has long been associated with right-of-center positions on national security and foreign policy.

But the paper’s conclusions did not sit well with DeMint, the sources said, who worried about offending or alienating more libertarian lawmakers such Sen. Rand Paul, a DeMint ally and leading critic of NSA’s collection of Americans’ phone records, as well as Tea Partiers, who according to a recent poll think that government counterterrorism policies have gone "too far" in restricting civil liberties. It’s those groups that brought DeMint his greatest influence as a lawmaker and made him a national political heavyweight.

It was not clear that DeMint personally ordered the papers be spiked, but sources who would not speak on the record strongly implied that it was his call.

The decision not to publish the papers is even more surprising because of whom Heritage had asked to write them: Steven Bradbury, who ran the Justice Department’s Office of Legal Counsel during the second half of the Bush administration. It was a logical choice, since Bradbury was intimately familiar with the complicated statutory issues in play and had provided his analysis of national security law to President Bush and other administration officials, some of whom had helped launch and run the NSA operations and other counterterrorism programs. David Addington, the former legal counsel and chief of staff to Vice President Dick Cheney, and one of the key architects of early NSA surveillance operations, is a vice president at Heritage.

But the think tank’s decision not to publish Bradbury’s opinions did not bury them.

Cully Stimson, a senior Defense Department official in the Bush administration who now runs Heritage’s national security law program, called Benjamin Wittes, the editor in chief of the national security blog Lawfare and a senior fellow at the Brookings Institution.

Stimson "asked me whether Lawfare might be interested in [the papers], and I was delighted to publish them," Wittes told The Cable. "We asked Steve to consolidate them into a single paper, and there were some subsequent revisions as well because of the document release that took place in the intervening period," Wittes said, referring to the government’s decision in August to declassify a large number of documents about NSA programs.

Wittes said the final paper "had its origins in a project that did not come to fruition at Heritage." He referred all questions to the think tank "about what the dispute was internally."

Attempts to reach Bradbury and Stimson for comment were unsuccessful.

For some Republicans who describe themselves as closer to the party’s center, or to its traditional roots in strong executive branch security authorities, Heritage’s decision not to publish Bradbury’s NSA defense was just another example of the hard-right turn the group has taken since DeMint became its president.

"The Heritage Foundation used to be a place where you had a debate of ideas. Now it’s much more tactical, how to raise money," said John Feehery, the president of Quinn Gillespie Communications and the longtime spokesperson for ex-Speaker of the House Dennis Hastert.

A former intelligence official who recently met with members of the Heritage staff about national security issues says he came away feeling that "they were looking for a hard right agenda. Anything that the administration did was wrong. And they had that right wing paranoia with regards to intelligence. What the NSA was doing and how they were doing it."

Libertarians and Tea Party members are hardly the only groups outraged over NSA spying, of course. A legislative attempt to significantly curtail NSA’s authorities nearly passed the House this summer, drawing rare bipartisan support.

But Heritage’s critics say DeMint is using his platform to launch a conservative insurgency, seizing on controversial and often divisive policy arguments. Several sources contacted for this story, who spoke on the condition of anonymity when discussing Heritage’s inner workings, said they were uncomfortable with DeMint’s involvement with Heritage Action for America, the nonprofit political advocacy arm of the foundation that is run by a separate group of leaders. DeMint speaks frequently at Heritage Action events.

Critics also pointed to the recent departure of some Heritage staff as signs of an exodus prompted by DeMint’s leadership. Mike Franc, who ran congressional relations at Heritage, left the organization this year to work for Rep. Kevin McCarthy, the House majority whip and a key member of the leadership team with which Tea Party members have been locked in internecine warfare. Derek Scissors, an expert on Asian economic issues, left Heritage for another conservative think tank, the American Enterprise Institute. And Matthew Spalding, a Constitution scholar, recently stepped down as the head of the B. Kenneth Simon Center for Principles and Politics at Heritage. He’s now an adjunct fellow with the Kirby Center in Washington.

"DeMint is trying to run a rogue operation over there," Feehery said. "There’s going to be an effort to crack down on ideas that don’t fit his narrow definition of what a conservative is."

Feehery added that the shift in positions would not be limited to national security matters and predicted that Heritage would continue to abandon fundamental positions with which it has long been associated. "I guarantee they won’t be [pro] free trade when DeMint is done with them."

Another prominent conservative, who spoke anonymously, described the evolution at Heritage more bluntly: "The lunatics have taken over the asylum."