Lawfare Daily: National Security, Counterintelligence, and Counterespionage: A Guide for the Perplexed

0:00The Electronic Communications Privacy Act turns 40 this year, and it's showing its age. On Friday, March 6, Law Fair and Georgetown Law are bringing together leading scholars, practitioners, and former government officials for installing updates to ECPA, a half-day event on what's broken with the statute and how to fix it. The event is free and open to the public, in person and online. It's lawfairmedia.org slash ECPA event that's lawfairmedia.org slash ECPA event for details and to register. Counter-ecology has been around forever, I mean espionage is what the second oldest profession, so I mean in the way that they conducted espionage is essentially, you know, the technology is different, but I mean the goals and the aims are really the same to get out and get an advantage over your global laboratory. It's the lawfair podcast. I'm lawfair senior editor Michael Feinberg with former FBI Assistant Special Agent and

1:04charge Derek Piper, who oversaw a counterintelligence branch at the Washington Field Office. You know, the idea that any agent is sitting there, culling through data, trying to find the next case, they're too busy for that. You know, you deal with the ones that actually rise to a level that they could be predicated. Nobody's got time to, you know, say, hey, I'm going to target this person. Today we'll be discussing the difference between counterintelligence and counter espionage, the skill sets needed for each and what happens when these cases become overly politicized. The reason we're doing this now is that as most people know, roughly two weeks ago on a Friday evening, the news media began reporting that at the FBI's Washington Field Office, a squad which focused, among other things, on Iranian counter espionage matters,

2:06was summarily fired for their role in a politically sensitive matter. The very next day, the United States functionally went to war with Iran. And in the human cry that followed in most media from the center right moving left following that chain of events, there was a lot of discussion that conflated counterterrorism, counterintelligence and counter espionage as if they were one thing, which they emphatically are not. So today, I thought it would be helpful to have Derek, who also left the FBI similar to the way I did as an ASAC within a counterintelligence division, for us to have a conversation about what exactly counterintelligence looks like, how it differs from counter espionage and why the nation should care, particularly in a time of conflict.

3:06Derek, with that said, would you be willing to sort of tout your own credentials and explain to us why we should care what you in particular have to say about counterintelligence? Sure, Mike, and thanks for having me. You know, this is my first opportunity to talk about myself in a while, so I appreciate it. So yeah, like you said, I mean, my entire career at the Bureau almost 21 years was spent working counterintelligence. I was assigned to a CI squad in New York. So the first half of my career was as a New York field agent, working counterintelligence worked on Russia counterintelligence stuff, and one of the cases that people have heard of out is like the Ghost Stories, Russian Illuminous Case. So that was part of what my squad did when I first joined the Bureau. The other part of what my squad did at that time was work espionage cases. So we had a lot of actually internal FBI cases where an agent would be suspected or there

4:12would be an allegation that there was an espionage allegation or at least some sort of misconduct that there was close enough to espionage that we took a look at it. So from the very beginning of my career, I was doing this hybrid thing where I was looking at Russian Illegals and I was looking at espionage cases. After the Illegals case ended in 2010, I moved over to the New York office's espionage squad. They had decided that they wanted to have their own standalone squad right around 2009. And I was transferred over because I had some experience working those cases. So I did that for a couple of years. Worked a variety of almost all, well, it was all espionage or media leak or mishandling pike cases on the espionage squad and you became a supervisor after that. And that's when the first time I went over to the global side, the Bureau counterintelligence tends to be broken up into kind of like Russian matters, China matters and global matters

5:20and global being the catch off for everything else. And so I moved over to become a field supervisor in New York on a global squad. So we did a variety of cases against a variety of countries. After doing my supervisor time there, I went to headquarters and that's where I made you. I was unit chief over the internal espionage unit at FBI headquarters. So the Bureau has its field offices where they're looking at the regional problems then you have the headquarters which is supposed to be looking at the program as a whole. So any internal espionage case against a bureau employee across the country would have fallen into that unit. So I was working there managing helping field offices with resources or some guidance and basically overseeing those cases, pushing them along to make sure that they were addressed properly. After that, what they do, I went back to New York for a hot minute and then I came back

6:23to headquarters. I worked over at CIA as a detail for the Bureau in the Russian operations section. So being the senior FBI person over at CIA headquarters working on Russia matters. This was very scrapple and all those kind of dust up between the U.S. and the world and Russia at that time. So it was a busy moment. After that, I came back as a chief of staff and a counterintelligence division for a little while working for the assistant director helping them with whatever they needed. And then I became a WFO ASAC. So our Washington field office has three assistant special agents in charge within the division or within the field office, but I was broken up into criminal, CT, C.I. and then there's mission services. And so I was one of three. I had the global group. So if it wasn't Russia, if it wasn't China, I had it.

7:25So that's kind of where my career ended. I ended up staying there five years until last January when I decided I could retire so I would insist on how I'm enjoying the retirement. So over the course of my career, I've touched on both the C.I. side of counterintelligence side of counterintelligence, but also counter-SBNR side, which I always thought the two sides of the same coin really. And one of the things that I used to do with new agents would be assigned to my division. Quantico, you remember this, doesn't do a real good job of preparing agents for counterintelligence work. I think I got a grand total of three hours training in counterintelligence when I was at the academy. Yeah, I don't even remember what mine was, but I remember it not being very impressive. And I mean in 2004, when I went through, I mean, it wasn't that long after Hanson, there was some significant counterintelligence work going on or had just finished.

8:29I think I read the wise book on Hanson at the academy and thought, well, that sounds interesting. But I don't remember very much about learning about counterintelligence and counter-terrorism training was even worse. So yeah, you get a new agent that gets assigned and a lot of new agents end up at Washington Field Office and they get assigned to a C.I. squad and they have no idea, like, all right, I don't know what this is. So what I used to try and explain to them is you got the C.I. side, which is you're looking at the counterintelligence activities of your adversary. What is an intelligence officer from another country doing in the U.S. to trying to hurt, steal, recruit Americans here or our interests? So does that angle on C.I.? I should caveat this as I only have big office experience. New York and Washington Field are the two biggest counterintelligence programs. I work in both of them.

9:31So this is going to differ if you're working in a small office in the middle of the country somewhere. The programs are smaller. The threats are not quite as apparent as they are in Washington and New York. But that's the C.I. focus. So you're looking at the actual foreign actors who are within the U.S. who are trying to hurt the U.S. and their espionage side is looking at the people that have either been recruited or volunteer to work for an adversary, whether they're providing them access or materials or secret information or a whole wide variety of different things that they could be doing. So on the one side, you're looking at the foreign actor and on the espionage side, you're really looking at the American. So this might be a good place to pause because you and I have sort of lived in this universe for close to two decades each for a little more than two decades for yourself, a little under for me.

10:32And I just want to make sure I worry that some of our listeners may be in the same position of somebody who just graduated from Quantico and is assigned to a counterintelligence squad. So I just want to sort of like do a one minute encapsulation of what you're saying and make sure that you and I are tracking on the same definitions. I always told you, you're going to hear acronyms and if you don't know, ask. So now's the time to recap if you caught what I said. Yes. So essentially, counterintelligence is as a general matter, identifying foreign spies in the United States and at the risk of broadly oversimplifying things, figuring out what they're up to. And then counter espionage is looking at the individuals who are usually United States citizens that have access to classified material or national defense information who have been

11:32recruited by those foreign spies to help them in their efforts to steal secrets. That's a good recap. Okay. So I do want to talk about something because we're going to dive more into the nuances, but I think when you and I first joined, that definition of counterintelligence was actually pretty narrow. You were looking at spies in their attempts to recruit US persons to get classified information. By the time both of us left, the universe of what counterintelligence entails had probably expanded quite a bit. I think when you and I joined the Bureau, for example, was not really looking a lot at foreign influence efforts or economic espionage or theft of technology. Could you maybe talk a little bit about how and why that expansion might have occurred?

12:33And since neither of us worked for the organization anymore, feel free to give your opinion on whether that expansion was generally a good thing or if it's distracting from what used to be the primary mission. Yeah. I mean, if you have the core mission of what are the spies doing, I think it's logical and made sense for us to begin to go down the path of what are the spies doing and what are the spies or why are the spies doing it? And who are they targeted? And so the whole foreign influence task force, I want to say that was 2015, 2016. It was 2017, they started it because it was in response to the polarization of that. So we had started looking at how our foreign countries influencing our opinions, our policies, our politics.

13:34And I think the big difference between when I started and that point was the ability for foreign actors to do this stuff without being there. So they could do it from overseas and the whole cyber angle and the fact that you could have people sitting in a basement in Russia, let's call it, influencing American elections or influencing American opinion on something. Back in the day, you would have to rely upon those spies who were already here, the intelligence officers or the diplomats and who were they meeting and how are they doing it. We're now they're doing it over the internet, really. And so the world changes. I mean, even when I left, the other comment I used to make a lot was, well, counterintelligence has been around forever. I mean, espionage is what the second oldest profession. So I mean, in the way that they conduct it, espionage is essentially, you know, the technology

14:37is different. But I mean, the goals and the aims are really the same to get an advantage over your global labors area. So you know, whether you're the trade crapped as a thumb pack in a park bench or whether or not you're using a thumb drive or you're using a cryptic, you know, apps, it's all really distilled, you know, you're able to effectively and clandestinely trade information, you know, than another country wants. Yeah. So I mean, I saw a change and I think, you know, is technological advances were made and coverage got better. It just started, you're peeling back the onion into stuff that you can see or you find out. And then it's like, how do we not look at this, you know, and yeah, you start walking down that path. It's dangerous because you're going to anger somebody. But how do you all get, you know, and how do you realistically say what we didn't look at it? You know, I mean, if the comment, there's nobody's above the law, well, if nobody's,

15:40you know, if somebody's breaking the law, how's the bureau not supposed to look at this? And the bureau has a ton of tools and a tons of ways to do this and, you know, and to to wield those tools, you know, in an illegal way using all the avenues that you are provided. I don't know how you don't, you know, and I don't think it's sidelined the bureau from its CI mission. I think it was just in the natural extension of the CI mission to see like, who are these people who are getting in for us and what's the point of it and how effective is it and how do we counteract that and how do we get the word out that what you mean, maybe looking at online is not what you think it is or is paid for by somebody else. I mean, I think, you know, it's such a, it's such a sticky, sticky problem. But I don't know how you don't look at it. And if you, if the bureau is not looking at it, then who is? And if nobody is, how is that not a problem?

16:41Well, we may find out. I mean, as you know, the foreign influence task force at the FBI has been disbanded as has the foreign malign influence center in ODNI. So I'm not in the government anymore. I don't know what efforts are being made on the foreign influence front. But if they are being made, they're a lot less demonstrative in public. And if they're not being made, we're going to have a natural experiment in what happens. Yeah, no, I think we may be at that point where we're going to fool around and find out, you know, like for all the criticism that the bureau got over the years about, well, they shouldn't be looking at this or this was of witch hunt or whatever. Now we're going to get to the point where, okay, well, the bureau is not looking at it. So what happens now? You know, and I think I think that's a serious, I think it's a serious problem. Yeah, and it's funny. I was actually, I didn't interview a couple of weeks ago. I think where I was trying to explain to somebody the difference between dropping the ball

17:46encounter terrorism and dropping the ball encounter intelligence. And the way I explained it was if you drop the ball encounter terrorism, people are going to die then and there. If you don't stop a plot, there's going to be a bomb somewhere. There's going to be a shooting. There's going to be a truck veering off the road. And in a discrete moment in time, people tragically are going to lose their lives. Counter intelligence on the other hand, if you dropped the ball, it might not be clear right away that there was a failure. It might not be clear for a decade. And I think back to my time in Los Angeles, because like you, I served mostly in large offices and the LA office overlooked a veteran cemetery. And one of my early supervisors pointed out to me all the graves from World War II.

18:49And he said every single one of those deaths is a counterintelligence failure because we didn't get ahead of figuring out what the Japanese or the Germans were trying to do to us. And as a result, that had real ramifications in battle and in war. So if we fail in Chinese counterintelligence today, for example, we might not know until we're unable to defend Taiwan if China chooses to invade in a year or a decade. Yeah, no, you know, you know, from the Bureau, you'll have a, you know, an arrest. And it's in the criminal side and it's very kind of cut and dry, persons in jail, you know, CT side, maybe you disrupt a plot, you can kind of articulate, but even then if you disrupt the plot, you don't get the kind of credit that you probably deserve for keeping things from blowing up. CI, you may just never even know whether that was going to happen or not, but if it did,

19:54I mean, I always said the CI emergency is an actual war, you know, it's like, you know, so you, you know, if you missed something or if there was something that you should have been tracking, that you had in your coverage or you should have had in your coverage or you should have been paying a test to or if it was dots that should have been connected and you didn't, I mean, I think, you know, the other countries on the U.S. is too, I mean, we all don't expend the amount of money in human capital to go try and get up on our adversaries for no reason. Okay, so, you know, and when you look at the amount of effort, it goes into a China or a Russia or, you know, any other country to go put people here to find out information about what the U.S. is going to do. We're doing the same thing. And if the FBI, as the counter intelligence people aren't figuring that out or aren't tracking that, I mean, we're going to get hit with a surprise if we should have probably seen coming and that's dangerous. And I mean, like, you know,

20:58you asked about the economic espionage. I mean, that was, that was not so much of a thing when I first started, but it became a thing, you know, in the 2010s period where all the sudden people were noticing that, you know, Chinese operatives deals, you know, a seed, you know, now they can, they can take this overseas and regenerate where they're skipping all of the research and the developments that the U.S. did and the amount of time and the effort and the money that the U.S. spent and just now they've got, I mean, it saves them so much time and effort and that, you know, and now there's, there's an advantage that is shifted that they didn't once have. You know, the biggest problem I always had with economic espionage thing was they would, and maybe you saw this presentation at 1.2 as they came in and they talked about the importance of the economic espionage and they were beaming up the faces of all the people that they had done and then it was like sentence was like I'm served five years if that. You're kind of like, you know, you spent

22:02seven years making the case, but the guy got five, you know, and that's not the bureau's fault, that's that's Congress, you know, not taking economics espionage serious enough to putting some sentencing. It didn't actually mean something, but what we really started seeing what other countries in particular, China, you know, is stealing and walking off with, you know, without having to expend much effort other than, you know, recruiting somebody, it's devastated, you know, and it's a loss of money, it's a loss of opportunity, and the loss is just rack up. So I want to pivot off something you just said about recruiting people. I think you and I would both agree. I think most people who've worked national securities would agree that one of the most important things even we do is counter intelligence agents is recruit confidential human sources. And one thing I always noticed was that some people

23:09are very good at recruitment and other people are very good at handling the sources once that recruitment has occurred. Well, it's very rare that somebody is good at both. They're just, they're different skill sets and they take different personality types and I'm curious to sort of get back to the counter intelligence versus counter espionage divide. Do you think it's similar that some people are better at general CI and some people are better at counter espionage or are the bodies fungible? I think like in an office like WFO where you have enough people or things CI, and just again WFO is the Washington field office. In a place like that or a place like New York where you have enough agents to sign the counter intelligence where you can kind of mix and match skill sets, I think it's a little different. But I do think I think you're absolutely correct that there are people in the bureau who I knew who were fantastic recruiters. They

24:14could get in front of somebody and they could convince them that it was in their life's best interest to help the United States government in some way and they could they could recruit just about anybody because they were just fat to it at it. And handling is different. I mean, handling is not the first date. It's the living with them and there's a whole different set of skills there. And I know, you know, me, I'd be I would not be a good recruiter. I would give a better handling. One of the important things I think about is CI still is to know which of those you are because you put the wrong person in the wrong role. It's not helpful. And so I mean, a lot of times we would have people who we knew were good at recruiting go out and talk to whoever was because they were they were good at that. And then they could hand them off to a handle. But I mean, all about the recruiting is these building that initial trust and then the handling is the keeping that trust and continuing to get the information and, you know, making that source feel

25:18valued and trusted. And they trusted you. And so I think that's the huge skill set. And that doesn't come out overnight. I mean, you don't just learn how to do it. And one of the, you know, the amusing anecdotes, I think that I that I used to have is people would bring me like a recruitment plan. And they would think that, you know, and they were they'd be newer. And they would think that this was the greatest idea. And they came up with this and it's like, yeah, but we've done this before. And it didn't work. And they just didn't know because they hadn't been in long enough to generate the history. They weren't certainly more trained on it. So a lot of it is, you know, follow on training or getting through briefings or just working the card in with other people who know what they're talking about. And you know, you'd have to shoot down an idea that you know just wasn't going to work. Or they'd be want to be the recruiter and they want to be the handler. And then if they went overseas, they wanted to do that too. You know, like, this isn't how these work. You can't, you know, if you've already outed yourself because you've done the

26:23surveillance on them. And now they know you're trying to recruit them. How would they go and to trust you? You just pretended you were something else for the first six months that they knew you. And now you're going to transition. You know, it just didn't know any better. And that's where the on the job training, you know, in the CI stuff is so important. Which means timing your C means time on the target. Knowing that, you know, I was valued to work on a Russian because a Russian would expect to see the gray hair. You know, you're fresh out of Quantico and you can do a thousand push ups and you know, and you look like you've been in five minutes. That's not what a Russian is going to expect because that's not what the mindset is. And so if you if you're that person, you try to recruit them, a Russian guy can come back to me with somebody more senior. I may not know anything, but I look more senior. So, you know, and so it's knowing the kind of knowing how

27:23how it works and gathering that information over time. It's just it's not a skill that you can just replace on the fly. Yeah, like, well, we'll just find somebody else to do it. The massive loss of, well, particularly with all the people that did a blast in the last year. You just don't replace that overnight. So I still want to get more a little more at the dichotomy between the two disciplines. I mean, I think you and I are an agreement based on what we just talked about that becoming a skilled CI agent where so much of your work is on recruiting sources and then doubling them back against the agency they're purportedly working for takes time. You just like you could do all the simulations in the world and all the role playing in the world while you're aquatico, but there's nothing that is a substitute for real life experience. And at least in the way I learned, there is nothing that was as good a substitute for screwing it up. Like, I learned

28:28more from the recruitments that failed than I ever did from the ones that worked. Well, the other the other danger just is if you are going to sit in a room with an intelligence officer and try to recruit them, they're also trying to recruit you. Right. Exactly. Yeah, so all right, so that's sort of like the bread and butter of counter intelligence. But once you get into the counter espionage realm, I argue it's a very different skill set for the sole reason that and I'm going to generalize here and I know and we can both think of people who would disagree with this characterization. But a really successful counter intelligence case, pure counter intelligence probably ends in a recruitment. On real successful counter espionage case, probably ends in an arrest. So if I've been working counter intelligence for three to five years, what have you? And I get pulled

29:33to a counter espionage squad. What are the new skills that I need to learn? And what are the potentially bad habits I might need to break? Yeah, so if you're coming from the CI world over to the espionage counter espionage side, it's a hybrid of the criminal world because you are now dealing with prosecutors, you're dealing with trying to take a case to court, whereas you're still working on the CI side because where did that predicate and information come from? I could have come from a highly sensitive human source, a technical source. So you may not be able to even use the predication for that case. How do you know to look at this person? Well, you better rebuild that in a different way that you can use in court. We would traditionally call that just for the audience, building alternate predication. In other words, you got to tip about Mr. Smith that the government is never going to admit in open court how it got. So you've got to come up with an equally

30:37legally valid reason to look at Mr. Smith that does not involve classified information. Yeah, and that's where I think having a bit of a CI background helps because you understand the nuances of why information might be more sensitive than not. Or like, all right, this is why I can't even up because there's a human source on the line who might get killed if this comes out. And we're not going to trade this for where that guy's death. You know, so having that CI background I think helps. I mean, my background before the Bureau was public corruption. So that was another good avenue to looking at the internal typepaces because there was a corruption the angle and not, you know, in a criminal as well. So having that a little bit of a criminal background, I know people who have had a CT background, which was particularly relevant on the global side because a lot of the countries, you know,

31:40take Iran, you know, you've got state-sponsored espionage being committed by China or Russia, you know, in Iran, it's kind of like state-sponsored espionage, but they also might throw a bomb. So, and that's why there's this big angle that nexus between CT and CI on the Iran threat in particular. It's a complicated threat because so much of it is not symmetric. Like, you would normally think, you know, it's an asymmetric type type threat where you'll have a, yeah, somebody will be doing a threat to life, somebody will be doing a cyber. I mean, they use all these things and are all sponsored by the state. It creates some big problem, you know, but again, Iran doesn't have an embassy. So I mean, it takes a different type of, you have to take a look, a different look at that particular target versus like a China or Russia. But like an espionage, counter espionage agent, I mean, they can come from all different

32:44backgrounds. Whenever I would select them to put on that squad, it would be somebody who had done something else before. If it was meaningful, if it was sensitive, and that they understood the nuances, and I also didn't want to have anybody who would come in and tell me they wanted to capture the next answer. Because your goal is never on the espionage cases, is not to arrest the subject or it may not be. It is to identify whether that person did it. And if they did, then you run them down and you figure out what damage they did and how do you stop that damage and then how do you prosecute them. But oftentimes, there's a lot of cases that get opened that the guy didn't do it, did something else that got a spotlight put on them, but it wasn't espionage. You know, it may have been some other kind of infraction or it may have been something or it could have been totally innocuous. And I always felt like the role of counter espionage agent should be to understand that there's huge risks to letting that case go on any longer

33:51than it needed to go. Identify, it is the first in the threat, deal with the threat, what happened to the information that they may have let out or clear them as passes you could so they could go back and not have a career that's, you know, goes down the coil it because they were an espionage subject. So you need very, I think, mature agents, you need very you know, good dose of common sense, but you also don't need the glory pound to, you know, once the directors will work because they caught the next spy. And I mean, I moved agents away from that squad when I got the sense that they were really thinking that every case they opened was the next handsome. 85% of them works. Yeah, you know, I don't think most people realize most espionage leads turn out to be nothing. There's a lot of grunt work separating the wheat from the chaff. And one thing I found most frequently in the ones that I came across was

34:56not a case of somebody giving classified information away. It was somebody having an affair or doing something not related to national security at all that caused them to act in a particularly furtive manner that raised their colleagues' suspicions. Yeah, I mean, I had an instance where we were watching this particular person and the allegations seemed sound. There was stuff backing it up, but among the things that he was doing was there's also buying real estate. And so he would he would meet some random guy in an alley and he'd be looking at a building and you know, what does spies do? And they might be meeting with somebody you don't know in an alley, but they also might be meeting with a real estate agent. You know, you know, you have these moments where you're like, oh my god, is this it? And then you find out it's it's his broker. You know, so what I found with almost all of those cases, especially in tunnels is there was always,

35:59there was always a good reason why probably that person shouldn't have been trusted to be an FBI agent, but it often wasn't espionage. You know, they they didn't join the bureau to steal secrets and they didn't come disgruntled and work with the foreign intelligence agency. They got frustrated with the rules and they drove their bureau car somewhere, you know, and you know, so there was always separating, you know, the, is this guy a spy? It's really, you know, or and if he's not and if he's not, should he still be trusted with the secret information, should be put in a position of trust. Oftentimes those answers turned out to be no, but they weren't spies. And you know, and that's why a lot of the cases I worked, you never heard of, because they ended up being this from the bureau for some other reason, but it wasn't, you know, they weren't arrested for spying. Yeah, an agent you and I both know who is still in, so we'll remain nameless told me that

37:04the most important quality for a car espionage investigation in his view was always emotional maturity. Because you have to realize when you're investigating somebody who has access to classified information, you're investigating a public servant, which means that you are, if you are totally wrong and totally off base, you're investigating a bonafide patriot who is doing their country good. And one of the thing that worries me when you jettison an entire squad, as we saw happen two weeks ago, have experienced counter espionage agents is that they might get replaced by people right out of the academy who they haven't been tempered yet by experience and they might not make that connection. Yeah. Because you get an espionage case in the bureau. It may not be the biggest case in the bureau, but it's on everybody's radar. And to be clear, when we talk about an

38:04espionage case in the bureau or an internal case, what we're referring to is an allegation that somebody actually employed by the FBI is despy you're looking for. Yeah. And if you get one of those, you've got the attention of everybody who knows about it, because there's also broke compartmented. And it's, you know, so it's a small pool of people who would know about the case, but they're all looking at you if you're the casey. You know, how well, you know, what's going on today? You don't take days off on a case like that. And what I always told my people that worked for me who got cases like that was, yeah, you worked that case hard, but you also realized that you should work that case like as if you were the subject, how would you want to be treated professionally? You know, you're not going to, you're not, you're going to, you're going to do it right. You're going to, you know, pursue it hard, but you're also going to do it professionally. And because that person, you may clear that person and they got to come back to work and that's

39:07your colleague, you know, your colleague until you until you prove that they're not. Right. There's a there's actually is a presumption of innocence. Yeah. And once you kind of turn that corner, and yeah, this is legitimate, then, you know, they've earned their right to have the bureau, you know, come with them full force, but while it's just an allegation or while it's, you know, work at hard, work at fast, figure out if it's real, but the assumption can't be this is the next handsome. Then you're thinking about the outcome as opposed to following the evidence in the fast. All right. And that, so that sort of gets to something that is going to be an elephant in the room for a lot of people, which is the bureau in certain quarters has gotten a reputation for using the counterintelligence or counter-espionage program to go after people for political reasons. And I don't think that's true. I've made the

40:12argument that it's not, but can you talk briefly, hypothetically, why does the counterintelligence division so often have to bump up against high profile people from both sides of the political spectrum? You and I can probably name half a dozen career politicians on both sides of the aisle, whom the bureau has publicly investigated, and we could probably name a lot more who are still not known to this day. Let's not. Can you talk about why is it that so many of these cases become so high profile? Well, I mean, they become high profile because of who they are, and then once once becomes known that the bureau is looking at them, it seems like over the last, you know, it's called a dozen years. The knee-jerk reaction is just to label it as this is political, you know, and it never was in my experience. You know, there was something at a coverage or something that came

41:18in from a lead or some piece of information that the bureau would collect usually in its routine coverage or would be brought to them, and the decision had to be made to look at this or not. The kinds of information that would come in, you know, if you're in Washington, DC, you know, the politicians in Washington or staffers or people working on the hill, working in the White House, they all have contacts with foreign nationals. They all have contacts with different foreign countries, they all have overseas, you know, connections in one way or another, and let's be clear most of those are legitimate. Yeah, and most of them are legitimate, but the bureau will know about them one through some means or another, and it's not because anybody's looking at anybody in particular, but it just comes up in in coverage in the sweeps or comes in directly from some lead.

42:23But my feeling with like, look, if we're looking at this allegation and it can be predicated properly and it's supported by some other independent facts and it makes enough sense. How do you not look at it? Because if you all look at it, you're being just as political as you'd be accused if you did, you know, and that's the worrisome thing that I saw happen over the second half for my career is, you know, you were damned if he did and you were damned if he didn't, you were political no matter what, because half the people would say, well, it's political and the others, how could they? You know, it was extremely frustrating, especially when you boil it down to, all right, well, did they have this contact and did they do this thing and, you know, did they report it or handle it properly? You know, you end up on the bureau's radar if you do something that puts you on the bureau's radar. And if you don't want to be on the

43:23bureau's radar, then don't. I mean, you know, you know, the bureau will look at a legitimate contact and say, nothing to see here. You know, the idea that any agent is sitting there culling through data, trying to find the next case, they're too busy for that. You know, you deal with the ones that actually rise to a level that they can be predicated. Nobody's got time to, you know, say, hey, I'm going to target this person. And like I said, when the last five years, I mean, we work on cases on, unfortunately, on both sides of the aisle. I mean, you know, in egregious behavior that, you know, nobody's above the law, and they deserve to be investigated. And it should have been run out. And if they were, if there's enough to go to a grand jury, it should go to a grand jury. If there's enough to go forward with a trial, it should go forward with a trial. You know, I, the idea that the bureau was making decisions

44:24for political reasons that wasn't my experience whatsoever. And then I went through my 21 years, and I don't think anybody could tell you how I voted. If I voted, you know, and I would say, well, I would vote A for adults. So all right. I'm going to ask you a question that to you and I is probably rhetorical. But I think it's important for it to be reiterated for the public as much as humanly possible. What happens when the investigators get punished for working those sort of cases? You, I mean, you lose the ability to get people to want to willing to work that stuff. I mean, when we had the previous special councils that happens prior to me getting it, so that the earlier Crossfire Hurricane, all those kind of things, the agents who were brought in to those cases got so slammed that you couldn't get them to volunteer or even assist

45:31with other legitimate cases. Because they're like, no way. I'm not, I'm not, I'm not going to do it. And if the current climate is, if you worked those cases, you're going to be fired for something as simple as, you know, wasn't necessarily the case agents that got fired. It was the support staff who worked on the spreadsheet who put together a list of phone numbers who got fired. That just sours it from a row of the entire office. Because nobody knows, you know, if that's the reason you can get fired, everybody can get fired. And therefore, you steer away from those kind of cases. It's better to make the decision to not, you know, all right, we just want to deal with that. You give me a, you know, my, my impression is if you found something like that these days, if you pushed it up the chain, nobody would want to support it. Nobody wants to get fired for bringing, for bringing a case. And you shouldn't, you shouldn't

46:32fear retribution, working a legitimately predicated case that had evidence to support it. It was collected lawfully and by the proper means and was not targeted in any way, you should, you shouldn't be fearful for your job. And those are the professionals that are here, you know, I work for four different presidents, you know, and I work under four different directors. I never, there was never a change in what my mission was or what I was asked to do or expected to do or how I was told to do my job in any of those changeovers. Until, until last year, supple. Yeah. And there's public data to support this. We don't have to sort of dance around it. If you look at, for example, when the DOJ inspector general

47:34does a report of viscerating a number of agents who worked on certain FISAs as Michael Horowitz did in the aftermath of Crossfire Hurricane, and then you look at the publicly released numbers for how many FISAs were sought the year after, it's a cliff. I mean, it is a, like I think we're talking like over a thousand less if not more. Yeah, no, I mean, I was in a meeting at over CD during that time period where CD is counterintelligence. Yeah, it headquarters. You know, we're, we're somebody asked, well, why are the FISA numbers so far down? And I kind of sat there and I you knew you're enough. I wasn't going to say the obvious, but I'm like, you just vilified everybody who's working on the FISA. And you've, you know, in the presses running about how the Bureau has done this, on that, like, why would anybody sign up to do that? And then, you know,

48:39and they're costly. And do we want to be looking at this stuff? And we always did the, the calculus. So do we need to be looking at this country or that? You know, you work into who constituted more of a threat because you can't, you can't devote resources to everything. But you were always having that conversation, which I think is legitimate. But the, oh, well, we're just not going to do new stuff. Well, we're not going to pursue FISA on a legitimate pace because we don't, you just don't want to deal with it. I mean, that's a huge, that's a tool that, that solves cases. It's, it identifies plots. It helps keep things from going boom. I mean, it's a, it's a, it's a powerful tool that if used correctly, and in my experience, always was, it keeps America safe. And if you're too worried about the fallouts to put one up, you're not going to find out the information you needed to stop a plot or to find a terrorist or

49:43find a spy. I mean, these are all terrible decisions made by Villa for lying, you know, the Bureau and the agents themselves who work with stock. While in that wildly optimistic note, I think we will wrap things up. Derek Piper recently retired assistant special agent in charge. Thank you for joining us and for sharing your knowledge on this topic. I look forward to talking again soon. All right. Thank you. The law fair podcast is produced by the law fair institute. If you want to support the show and listen ad free, you can become a law fair material supporter at lawfairmedia.org slash support. Supporters also get access to special events and other bonus content we don't share anywhere else. If you enjoy the podcast, please rate and review us wherever you listen. It really does help. And be sure to check out our other shows, including rational security, allies, the aftermath and escalation. Our latest law fair presents podcast series about the war

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