The authority of the FBI to conduct criminal investigations and, with United States attorneys, to prosecute lawbreakers in our nation’s federal courts, is well known. Those cases, often reported in the press and dramatized by Hollywood, cover an enormous range of criminal behavior, from public corruption, to fraud, to crimes against children, to cyber intrusions, to the actions of violent gangs wielding guns and dealing drugs.
But the Russian investigation that has monopolized the news cycle for the past year has focused attention on another — lesser known — aspect of the FBI’s role: as the leading “counterintelligence” agency on U.S. soil. Of vital importance, that work often occurs outside the public eye, and is less well understood by citizens. This fact was reinforced over the weekend by shocking but not surprising reporting in The New York Times revealing that following President Donald Trump's controversial firing of former FBI director James Comey in May of 2017, "law enforcement officials became so concerned by the president’s behavior that they began investigating whether he had been working on behalf of Russia against American interests."
But what does counterintelligence entail — and what do we even mean when we say counterintelligence?
The Russian investigation that has monopolized the news cycle for the past year has focused attention on another aspect of the FBI’s role: as the leading “counterintelligence” agency on U.S. soil.
First, the basics. Intelligence is really just a fancy word for information. Agents and prosecutors collect information for use in court; when we use information that way, we refer to it as “evidence.” But when the U.S. government collects information for other purposes, such as to inform and guide the decision-making of U.S. national security officials, we call it intelligence. Evidence and intelligence are essentially the same thing: information, just put to different purposes.
Foreign governments, like our own government, have intelligence services. Those foreign intelligence services (think the CIA in our country or MI-6 in the United Kingdom) gather information about other countries, their leaders, their abilities, their industries and their intentions. Much of that work is classified — as you would expect.
We don’t worry about the U.K. (or other close allies) spying on us, but we do worry about hostile foreign governments (think Russia, China, Iran, North Korea and others) that attempt to, according to the FBI, “gather information about the U.S. that adversely affects our national interests.” Those hostile foreign governments collect intelligence about us — our industries, our research and development, our technology, and our leaders — so they can use it to their advantage and to our detriment.
The FBI is charged with countering the efforts of those hostile foreign intelligence services — thus, we say that the FBI conducts counterintelligence. The FBI explains the scope of that mission on its website, noting its work in this realm “include[s] foreign and economic espionage, or ‘spying’ activities, that may involve the acquisition of classified, sensitive, or proprietary information from the U.S. government or U.S. companies. The FBI investigates whenever a foreign entity conducts clandestine intelligence activities in the United States. [The FBI’s] counterintelligence investigations also help combat international terrorist threats, including those involving weapons of mass destruction and attacks on critical infrastructures.”
Indeed, the FBI has an entire division within its National Security Branch — the aptly named Counterintelligence Division — dedicated to this mission. The men and women of this division — special agents, analysts and professional staff — work on matters that may never see the inside of a courtroom. That requires some explanation, too.
Often, the intelligence-related activities of hostile foreign governments also violate domestic U.S. law.
Often, the intelligence-related activities of hostile foreign governments also violate domestic U.S. law. For example, Robert Mueller’s team recently indicted 12 Russian GRU (military intelligence) officers for hacking into U.S. computers. The conduct of the Russians constituted both an intelligence gathering operation directed against our country — and our 2016 presidential election — and a federal crime. In this instance, the Mueller team and the Department of Justice chose to charge those Russian officers with a crime.
However, in some situations where a foreign country is conducting an intelligence operation against our country, our national interests can sometimes best be served by not charging these bad actors with a crime. For instance, we might prefer a diplomatic solution to a criminal one. Or the intelligence we gather can be used to inform our judgments about the foreign country’s capabilities and inclinations, guiding longer term policy. Often, counterintelligence investigations do not end up in court because we exercise these other options or because the way in which we learn stuff about our adversaries is extraordinarily sensitive and we do not want to risk having them know about our capabilities.
As the FBI notes, “[f]oreign influence operations — which include covert actions by foreign governments to influence U.S. political sentiment or public discourse — are not a new problem. But the interconnectedness of the modern world, combined with the anonymity of the Internet, have changed the nature of the threat and how the FBI and its partners must address it. The goal of these foreign influence operations directed against the United States is to spread disinformation, sow discord, and, ultimately, undermine confidence in our democratic institutions and values.”
The FBI’s counterintelligence work proceeds quietly, in many corners of our country. It often does not result in criminal prosecutions, but it helps to keep our nation safe, much as the FBI’s criminal enforcement work does. Of course, the FBI acts scrupulously within the rules here, consistent with the Constitution and the laws of this nation, and with rigorous oversight. Those rules ensure that civil liberties are respected and protected, particularly where American citizens are concerned.
Simply put, it is crucial that we have a robust counterintelligence capability housed within the FBI. You may not see most of its work, but they do an extraordinary job protecting us.