Date: 01/07/2022 Time: 19:19
By J. Michael Waller
It’s time to re-think how states defend themselves against relentless foreign espionage, terrorism, subversion, and other threats from foreign state and non-state actors.
Federal authorities are overwhelmed. Long-trusted entities have become politicized with few checks and balances, losing public confidence. Bureaucratic politics promote waste and groupthink, and penalize innovation.
On the positive side, the National Counterintelligence Strategy set up by the Trump administration remains in force, calling for whole-of-government approaches that depend heavily on state and local authorities.
Meanwhile, power trends are moving away from the Washington colossus and back toward the states. Recent US Supreme Court decisions have rejuvenated the federalist principle of power to individual states.
These factors and more combine for the states to come up with something new.
What is counterintelligence?
Since 1981, the federal government has defined counterintelligence, known as CI, in Executive Order 12333 as “information gathered and activities conducted to identify, deceive, exploit, disrupt or protect against espionage, other intelligence organizations or persons as their agents, or international terrorist organizations or activities.”
The definition expanded over the years. The National Counterintelligence Strategy of the United States of America 2020-2022 set five strategic objectives: Protect the nation’s critical infrastructure, including the electrical grid; reduce threats to key US supply chains; counter the exploitation of the US economy; defend American democracy against foreign influence; and counter foreign intelligence cyber operations and technical operations. At least the first four of those five strategic objectives actively involve state and local authorities.
Counterintelligence is complex and “hard to define,” according to former CIA counterintelligence chief Paul Redmond. “Only at the strategic level are there reasonably consistent definitions of counterintelligence,” he said. Counterespionage – the art of catching spies – is a component of counterintelligence, which is a much broader field.
At lower levels in the federal government the official definitions, roles, and understandings are more variable and complicated. States today generally do not use the term “counterintelligence” for their own security and law enforcement activity, despite having units that perform functions that fall within the general understanding of the term. Consequently, they lack a CI mentality and miss many threats around them.
Why not leave CI to the federal government?
The counterintelligence threats to the United States are immense and complex. They burrow into almost every state. Adversaries like China wage a “whole of society” intelligence and subversion offensive against our entire society, far outmatching anything the FBI can do to make more than a dent. Despite known and unknown victories and the dedicated work of agents and analysts, the FBI, as the nation’s prime counterintelligence agency, has done a mediocre job, at best, of neutralizing hostile intelligence networks and operations.
US authorities seek state and local help. The National Counterintelligence and Security Center director said in 2020 that the organization “is committed to working with federal, state and local governments, the private sector, universities” and others to address counterintelligence threats.
With the federal government not suited to the task, it becomes the responsibility of individual states to stand up their own counterintelligence capabilities, however basic. The 2020-2022 counterintelligence strategy explicitly this: “To meet the increasing challenges posed by foreign intelligence actors, the United States will need to employ whole-of-government counterintelligence and security approaches that effectively integrate offensive and defensive measures and leverage all instruments of American power,” that includes “coordinated actions by federal, state, local, tribal, and territorial governments” plus the private sector.
This coordination, according to the strategy, requires expansion of “critical infrastructure information exchanges and the sharing of threat intelligence, incident reports, vulnerability and risk data, and other actionable information with state, local, tribal, and territorial governments.
The strategy laid out a similar plan to secure key supply chains and combat foreign influence.
Hostile regimes and organizations view states as soft targets. Without a real CI capability or even an awareness, state and local levels are among the softest, easiest of targets. Some foreign intelligence services target individual state political figures to influence state-level policy. Others infiltrate state and local police forces to gain access to non-public information about individuals and investigations. Foreign regimes infiltrating American police include China, Cuba, Egypt, Iran, Russia, Turkey, and Venezuela, plus non-state actors like the Muslim Brotherhood and Latin American cartels.
Many state and local police have own intelligence units. Individual states and cities presently have their own intelligence units, usually as part of a police department or counterterrorism section, but few consider the CI side of their jobs.
New York City has its own deputy commissioner of intelligence and counterterrorism. NYPD has the most “robust” intelligence collection and analytical unit of any city in the country. It provided specific, actionable intelligence in advance to federal authorities about planned, organized violence at the United States Capitol on January 6, 2021.
The US Department of Justice has encouraged and assisted state and local police intelligence units for decades. Intelligence-led policing expanded exponentially in the counterterrorism upsurge after September 11, 2001. This relationship has enjoyed the near universal support of federal, state, local, and tribal authorities, and with mainstream police and law-enforcement associations. DOJ continues to provide training and guidance to police intelligence at every level.
Some state and city police intelligence units have operated abroad and maintained liaisons with foreign intelligence, police, and security services for their own law enforcement purposes, usually due to ethnic, diaspora, or international criminal effects in their jurisdictions.
Given their “counter” role for law enforcement and public safety, and their existing duties to conduct at least four of the five main duties outlined in the National Counterintelligence Strategy, many state and city police perform CI without even realizing it.
The issue now is how to build awareness of a threat and a solution, and to do it in ways that ensure each participating state’s particular interests while contributing to national security.
China has taken its battle into American states and cities
The People’s Republic of China, through its MSS foreign intelligence service and various Chinese Communist Party organs, has targeted governors and lawmakers in most states. Then-secretary of state Mike Pompeo warned of this threat, uncovered during an interagency investigation begun in 2017, to all 50 governors at the National Governors Convention in early 2020.
Pompeo told the governors that “a Chinese Government-backed think tank in Beijing produced a report that assessed all 50 of America’s governors on their attitudes towards China. They labeled each of you ‘friendly,’ ‘hardline,’ or ‘ambiguous.’ I’ll let you decide where you think you belong. Someone in China already has. Many of you, indeed, in that report are referenced by name.”
Whether soft or harsh toward Beijing, American governors and their teams have been assessed and managed by CCP entities. So have American schools and universities, targeted through CCP-run Confucius Institutes embedded nationwide. These presented their own threats, and, thanks to exposure at the federal level and by private organizations, have been sharply reduced. After public focus on the Confucius Institutes, some states and universities took action and shut them down. But some maintained relations with the CCP supervisors of the institutes back in China, or permitted the Confucius Institutes to remain under a different name.
The Biden Administration shut down the interagency China program in 2021, leaving states to themselves.
State-based counterintelligence and the American founding
Counterintelligence run by individual states is as old as the USA itself, so the concept is nothing new.
New York is credited with being the first state to establish a standing counterintelligence agency. The state legislature, in 1776, created the Committee for Detecting and Defeating Conspiracies, whose purpose was ‘inquiring into, detecting and defeating all conspiracies which may be formed … against the liberties of America.”
A CIA history of American counterintelligence says that “the Committee’s charter was to investigate the activities of known Loyalists, those disaffected with the American cause, and those who might be threats to the revolution.” The Committee operated out of Albany city hall, with sections in at least seven counties. Committee members had the legal power to imprison and deport “enemies of liberty.” The state legislature placed a militia company under its command..
The 30 year-old chairman of the New York Committee for Detecting and Defeating Conspiracies is considered “founding father of American counterintelligence.” That man was John Jay, a co-author of the United States Constitution, future author of five of The Federalist Papers, and the country’s first Supreme Court Chief Justice.
The Office of the Director of National Intelligence (ODNI) considers the New York state committee to be America’s first counterintelligence service. Though under the authority and command of New York state, it worked with the Continental Army. The Committee ran counterintelligence operations that included defeat of a British plot to assassinate General George Washington. The Committee operated until the end of the war in 1781.
Counterintelligence, like public safety, is most effective as a state of mind than as a costly bureaucracy. Some of the world’s best counterintelligence capabilities are more spartan than they appear. Therefore, individual states can build small but effective counterintelligence capabilities at very small cost.
Each state contains human and physical targets of hostile foreign intelligence services. The federal government lacks the manpower to protect them. Federal agencies also have a long way to go to earn back their lost public trust. And to do their job properly, they need help from state and local entities with their massive counterintelligence mission.
State counterintelligence units can protect against federal overreach, politicization, and mediocre collection and analysis. They can also do what is in the specific interest of their particular state, regardless of who handles the levers in Washington.
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