CAN COUNTERINTELLIGENCE COME IN FROM THE COLD?

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00965R000100440072-7
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 8
• Document Creation Date: December 22, 2016
• Document Release Date: December 28, 2011
• Sequence Number: 72
• Content Type: OPEN SOURCE

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POLICY REVIEW
PUBLISHED by THE HERITAGE FOUNDATION
WINThR 1981
Can Counterintelligence Come
In From the Cold?
ARNOLD BEICHMAN
"The best hope that the free world will remain free lies in
an efficient, constitutional, freedom-loving but ade-
quately secret - CIA and FBI."
- M.R.D. Foot, Professor of Modern History,
University of Manchester, in The Economist,
March 15,1980.
What a cushy job it must be today to run the Soviet KGB,
the USSR secret police and espionage agency. There is longevity
and job security, not as in the old Stalin days when, after a few
years as head of the secret police, you were taken out and shot.
Better yet, Yuri Andropov, who runs the KGB, sits on the
Politburo secure in the knowledge that his once redoubtable
adversaries, the CIA and the FBI, have for the last seven years
been so weakened that they are no longer serious competition.
Even now, when there is some possibility that Congress may
allow the CIA and FBI to function once more, it will still be
years before these agencies will be sufficiently secure against
KGB penetration and disinformation.
Penetration of the CIA by the KGB is now an established fact.
On October 29, David H. Barnett, a former CIA agent, confessed
that he had been selling important secrets to the Soviet agency
for some years - including a top-priority clandestine CIA
operation in Indonesia in the 1960s. Mr. Barnett also confessed
that he had revealed to the KGB the identities of thirty covert
CIA employees.
The organizational deficiencies have multiplied since 1975
because of Congressional investigations, Executive orders and,
above all, because of the serious decline of U.S. counterintel-
ligence capacity in the CIA and the FBI. This was the conclusion
of many specialists who attended the third meeting of the Con-
sortium for the Study of Intelligence (CSI). It is now possible,
for example, to assign Soviet agents to the U.S., literally by the
shipload. In 1978, there were 1,300 Soviet and 700 Soviet-bloc
officials permanently assigned to the U.S. as diplomats, media.
and trade representatives, and staff to international organizations.
The number of Soviet-bloc graduate students has increased from
the usual 35-40 to 200. During 1977, there were almost 60,000
Soviet-bloc visitors to the U.S. Of these visitors, 14,000 were
commercial, scientific, and cultural delegates, while the remain-
ing 40,000 were crewmen who enjoyed complete liberty while
Soviet ships were docked in 40 U.S. deepwater ports.
Now I have it on good authority that before Congress put the
FBI on its "most wanted" list, the FBI routinely covered KGB
suspect agents on a one-to-one basis, that is, one FBI surveillance
expert to one KGB suspect. Today, as Mr. Andropov knows
well, the ratio has dropped to 1-to-4. There are just too many
KGB targets floating about the U.S. today, while some 300 FBI
staffers are busy checking applications from all kinds of dubious
sources under the Freedom of Information Act. Let me quote
former Assistant Attorney General Antonin Scalia, now a pro-
fessor at the University of Chicago Law School:
1T1
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A story that I often tell is, when I was at the justice
Department, concern was expressed by the National
Aeronautics and Space Administration that it was receiving
a regular series of requests from AMTORG, the Soviet
trading company. And they asked the justice Department
was there anything they could do about it under the Free-
dom of Information Act and, of course, the answer was
no. The Act doesn't make- any distinction with respect to
citizens or aliens or foreign companies, so it's not an unreal
problem, but the Act was quite clearly drawn that way, and
intentionally so. I don't think that it was an oversight.'
Thus foreigners and foreign governments, regardless of whether
friend or foe, have the right under American law to information
from all agenciesof the American government.
If this state of affairs were limited to a few agencies, the
damage might be controllable. But the damage goes far beyond
that - it threatens the very existence of counterintelligence,
without which there can be no operative intelligence system.
To put it simply, the crisis of U.S. intelligence is a crisis of
counterintelligence.
Newton S. Miler, former chief of operations _in_ the counter-
intelligence staff of the CIA under James Angleton, recently
told the CSI that America did not have an effective counter-
intelligence capability. He told us that neither the CIA nor the
FBI neutralizes Soviet and Soviet-bloc intelligence activity
in the U.S. There are even people who believe that the CIA has
been "turned around" and that revitalizing the agency, instead
of starting a new one, would merely strengthen the possible
KGB penetrators in the CIA right now, such as any Barnetts
who still may remain undiscovered. The importance of counter-
intelligence has been emphasized by Richard Helms, CIA
director from 1966-72, who has said, "Counterintelligence is
terribly important, because without an effective counter-
intelligence program - both in the CIA and the FBI - the
problem of double agents and infiltrators is insurmountable."
Still worse is the fact that throughout these-five years the
powerful Congressional intelligence oversight committees have
paid little or no attention to the presence of the KGB in the
U.S. Nor have such powerful newspapers as the New York
Times and Washington Post - which for years occupied them-
selves with relentlessly, exposing our intelligence agencies -
paid any_ attention to the KGB. I know of no Congressional
committee' which is presently working on an investigation of
'the KGB. Unfortunately nothing much can be done on such
a matter because there are weightier debates going on in
Washington. There is, for example,.a dispute over Carter Admin-
istration amendments to the National Intelligence Act of 1980
and to the Foreign Intelligence Surveillance Act (FISA) bf
1978. In one case, the row is over an amendment to the FISA
whether to "extend the emergency surveillance period of 24 to
48 hours"! This situation justifies Senator Frank Church's
observation: "I wonder-if we are competent to manage an
intelligence gathering program on anything."2 Senator Church
should know.
1. Report of the Proceedings of the American Bar Association Com-
mittee on Intelligence, December 1979.
2. Situation Report of the Security and Intelligence Fund,Washing.
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Intelligence Security
The importance of a counterintelligence agency is to ensure
that the other parts of the intelligence community can be
trusted - that is, those sections which deal with covert oper-
ations, clandestine collection and analysis and estimates. If
counterintelligence operatives are inefficient or intimidated, the
enemy success is inevitable.
Success or failure in counterintelligence depends largely upon
the ingenuity of counterintelligence officers as well as on the
initiative and courage of sources of information. In other
words, successful counterintelligence depends upon the quality
of its personnel - the counterintelligence analyst, the counter-
intelligence case officer, and the agent or informant. But the
quality of the personnel is insufficient to guarantee good
results. There must be positive incentives to good performance
and under the present system, certainly during the last seven
black years for U.S. intelligence, there have been disheartening
disincentives.
The counterintelligence analyst, farthest removed from
danger or betrayal, must perform an unpleasant duty if he is
to be loyal to his assignment. He must constantly question the
bona fides of sources and the validity of information which is
usually hard-won, often unique. Such questioning 'of infor-
mation, especially from defectors, reflects - or may be inter-
preted as reflecting - on the judgment of others in the intel-
ligence community and in the government itself. Often the
counterintelligence analyst is questioning the judgment of
officials of much higher rank than his.
The counterintelligence case officer has an even more diffi-
cult road. He is the actual counter-spy. His duty is to investigate,
to maintain surveillance, to infiltrate, to carry out "experi-
ments" - e.g., feeding data to certain persons through certain
channels and then watching for results to confirm or disconfirm
suspicions about individuals within his own service who may
have been deceived or used or have actually gone over to the
other side. If there had been any successful counterintelligence
activity in Britain could the Philbys, Blunts, and Macleans have
flourished?
The agent (i.e., the source or informant) is in the most
difficult, if not the riskiest, position of all. If his identity
becomes known, he may be killed. Lester Dominique, a federal
informant, was recently found bludgeoned, beaten with chains,
disemboweled with a machete. His name had been inadvertently
left in open court documents.
The agent, the informer who penetrates an organization,
must do the things required of anyone living in the environment
he is penetrating. Such work is usually unpleasant, often ' J
dangerous and sometimes illegal. Adding to the informant's lJ
agonies is the fact that he is no longer regarded as a useful
member of the society which he is serving, whatever his motive
may be. In the 1950s, an informer's job was glorified in a TV
serial, "I Led Three Lives." But by the 1970s, the undercover
operative no longer enjoyed much esteem. Thus E. Drexel
Godfrey, a former senior CIA official, wrote in Foreign Affairs
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(January 1978) that those in the business of corrupting others
actually end up corrupting American society. Such a statement,
unprovable by its nature, borders on the metaphysical and tells
us little about how to combat in peacetime enemies determined
to destroy that same society.
Although formal proof is lacking, it may be that the size of
the overall counterintelligence program has increased both in
manpower and in money during the last few years. Compared
with the early 1970s, some parts of the counterintelligence
community - parts of the CIA's counterintelligence staff and
the FBI domestic security program - have been cut. Other
sectors have been augmented - the FBI's foreign counterintelli-
gence staff and Department of Defense sections.
Despite this apparently good news, it is far from clear that
the total resources devoted to counterintelligence are adequate
to the needs of the 1980s, especially when the KGB has had
such an easy time for several years. However, the most formi-
dable obstacles to U.S. counterintelligence have been specific
laws, judicial opinions and regulations enjoying the force of
law which together have created a host of disincentives to effec-
tive counterintelligence.
Laws whose norms are clear-cut are not the problem. Counter-
intelligence operatives now know that they are barred from
engaging in activities once considered permissible. But other
rules are nowhere near as clear; lawyers themselves will argue
about the meaning of regulations and judicial decisions. Thus,
for instance, it is not always possible to guarantee an informant's
anonymity. Finally, as is the custom with Congress when con-
fronting a delicate issue, some rules are made intentionally
vague - to satisfy competing pressure groups - on the assump-
tion that the questions will be finally resolved by the courts.
What is the counterintelligence operative to do in the meantime?
His interest is to stay at a safe distance from a law or regulation
until the matter is settled conclusively.
The totality - laws, court cases, presidential orders, guide-
lines, the interpretations which the CIA and other agencies offer
of these norms; the hearings and statements of powerful legis-
lators and their staffs - create a legal and legislative climate
which hampers counterintelligence performance. That is the
opinion of both retired counterintelligence officials and former
informants.
Let me make something clear. I do not argue that counter-
intelligence should be free of rules, standards and prohibitions.
Restrictions are necessary to protect civil liberties. However,
the constraints which have been put into effect since the 1970s
have been narrowly focused to the detriment of counterintelli-
gence performance. It should be possible to devise rules that can
both assist the counterintelligence mission and protect civil
liberties from potential abuse by the government.
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The Function of Counterintelligence
The legal restrictions arise from a misunderstanding of what
counterintelligence is and what it is not. Counterintelligence
cannot be identified with criminal proceedings, because counter-
intelligence deals with activities whose primary characteristic is
not criminality but hostility to the nation's security. The pur-
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pose of counterintelligence is not to prevent crimes and to
punish criminals but rather to learn about and to neutralize the
activities of the nation's enemies.
In criminal investigations, it is hard to imagine that the
government would have a right to keep tabs on wholly innocent
persons. In the field of intelligence and counterintelligence it is
sometimes necessary to observe the activities of perfectly loyal
citizens in order to learn about the activities of hostile intel-
ligence services.
The counterintelligence officer's relationship with a hostile
spy is not comparable to that between a policeman and a
criminal. The hostile spy may not even be doing anything
criminal because covertly influencing public policy in the U.S. is
not a crime. Punishing him is not the task of counterintelligence.
Its tasks are fourfold:
(1) to protect our own intelligence operations.
(2) to discover deception and disinformation.
(3) to uncover secret political operations directed against
the U.S.
(4) to keep spies and terrorists from being successful.
It is not part of counterintelligence operations to go beyond
identification of an enemy agent. Counterintelligence officers
generally argue against arresting hostile operatives; once known,
they become harmless. The Foreign Intelligence Surveillance
Act of 1978 requires special proceedings to obtain warrants for
surveillance; the requirements are a parody of criminal law.
Even more ludicrous is that in the course of the trials required
to convict spies it is often necessary to reveal more information
than the spies, during their operations, had actually succeeded
in obtaining.
It is not my intention to depict counterintelligence officers
or other CIA officers as nature's noblemen, worthy of exemp-
tion from the accepted rules governing the behavior of other
appointive officials. Counterintelligence officers have a job to
do which, by its nature, may be unpleasant and discomforting
to a democratic society. Not all democratic standards can be I
applied in dealing with the operatives of a government which
operates by a totalitarian standard and which judges victory
solely on its success in weakening a democratic society.
In confronting this highly successful Soviet espionage organ-
ization, American government officials - regardless of party -
have simply not understood the counterintelligence mission,
either in the CIA, the FBI or the Defense Department. I say
"regardless of party" because it was President Ford's Attorney
General, Edward Levi, whose guidelines regulating counter-
intelligence activities are effectively in force today. They have
remained substantially unaltered throughout the Carter Admin-
istration.
The main concept which informs the guidelines is the crimi-
nal standard - the notion that an individual should not be
subject to investigation unless it can be demonstrated that h
i
e
s
or probably will be involved in a criminal undertaking. One set
of
id
li
gu
e
nes (publicly available) establishes thresholds which
cannot be crossed unless it can be demonstrated that a U.S.
citizen or resident alien actually has committed or is about to
commit a crime. Advocating or discussing the violent overthrow
of the government or the commission of terrorist acts is not
enough. The FBI has interpreted these rules to mean that it
cannot even collect publications of domestic organizations
unless there is "probable cause" to believe that a crime is
imminent.
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According to the guidelines, should the FBI come across
information that an organization may be planning to violate the
law (for example, a report that someone is buying explosives)
then the FBI may slightly increase surveillance of the group and
establish a "limited investigation." This means no electronic
surveillance, no mail cover, no placing of informants in the
group.
Such "intrusive" techniques are permissible only when a
"full investigation" has been authorized by FBI headquarters on
the basis of "specific and articulable facts" describing "(1) the
magnitude of the threatened harm; (2) the likelihood it will
occur; (3) the immediacy of the threat; (4) the danger to priva-
cy and free expression posed by a full investigation."
Here is the classic catch-22. How do you obtain the infor-
mation to justify a full investigation without first using the
investigatory techniques which are expressly forbidden in a
"limited investigation"? The answer is you cannot do so.
These guidelines impose similar obligations on the field
agents; they must write justifications for investigations which
they may be reluctant to commit to paper because all they
have is a hunch and imperfect data. It must often seem better
to drop the case.
Further Obstacles
These are only the unclassified guidelines. The classified
guidelines deal with foreign counterintelligence activities,
but retired FBI and CIA officials indicate that the principles
embodied in the one are not substantially different from
the principles in the other.
These "domestic" and foreign guidelines reportedly have-
limited counterintelligence operations to a criminal standard
so strict as to prohibit surveillance of the Puerto Rican terrorists
who, released after serving twenty-five years in prison, vowed to
strike again.
One could write at length about the legal straitjackets which
restrain counterintelligence from effectiveness. But there are
other problems which are little noted: training and recruiting
counterintelligence personnel. Kenneth deGraffenreid of the
Senate Select Committee on Intelligence told the CSI that
recruitment and training are today almost certainly inadequate j
even for the narrowly defined mission that has been given to so
many counterintelligence entities. In other words,. even under
the present constrained circumstances, the counterintelligence
program does not even begin to address the needs of a national
program of strategic multidisciplinary counterintelligence
(MDCI). Mr. deGraffenreid maintained that counterintelligence
is the essential base upon which this nation must construct
its intelligence system; strategic MDCI is the counterintelligence
philosophy which will meet the particular counterintelligence
challenges of the 1980s.
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The MDCI to which he refers demands expertise in areas
beyond classical counterintelligence functions, such as personnel
security, double-agent operations, and analysis of long-term
Soviet intelligence operations. The new areas which MIDCI en-
compasses include assessment of the vulnerability of U.S.
technical collection systems to strategic deception and appli-
cation of counterintelligence procedures and analysis to the
field of technical collection. In the past, counterintelligence has
suffered because it has made insufficient use of technical
systems to support its own operations.
Mr. deGraffenreid argues that the U.S. intelligence communi-
ty at present lacks the structure, direction, and knowledge
necessary even to gauge the total foreign intelligence threat to
U.S. technology. Additionally, there is at present no centrally
directed effort to protect U.S. weapons from compromise
during their development cycle from design through operational
deployment.
There are some observers who take an optimistic view of the
future for U.S. intelligence and counterintelligence. I do not.
Unless we are first made aware of the titanic effort directed by
the Soviet Politburo to attenuate American power and will, and
finally we realize that this effort is succeeding, no reform, no
alignment, no new philosophy, and no new technical expertise
are going to help one whit.
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