COMMITTEE ON SCIENCE U.S. HOUSE
OF REPRESENTATIVES
HEARING CHARTER
Conducting Research During the War on
Terrorism: Balancing Openness and Security
Thursday, October 10, 2002 10:00
a.m. to Noon 2318 Rayburn House Office
Building
Purpose On Thursday, October 10, 2002
at 10:00 a.m., the House Science Committee will hold a
hearing on how to balance the need for greater security
with the need for open scientific communication. Since
the September 11th attacks and subsequent anthrax
incidents, Congress, the executive branch, and the
scientific and technical communities have begun
discussions on how to prevent scientific research
results and information from becoming national security
risks. This hearing will focus on the treatment of
sensitive information and of foreign faculty and
students.
The hearing will focus on several overarching
questions:
1. What elements of a particular research project or
publication trigger concern about the "sensitive" nature
of the work or findings?
2. When a research project or publication is thought
to include "sensitive" elements, who should determine
who is allowed to engage in the work and which findings
will be published in the open literature?
3. While there is an assumption that science requires
complete openness to thrive, there are many examples of
excellent scientific research conducted in a restricted
environment, for example, classified defense research
and proprietary industrial research. Does science truly
require openness and are there differences in the need
for openness in different scientific communities?
4. Are the national security threats of today
significantly different from those in our pre-September
11th history, including the Cold War era? Why and in
what ways do today's threats demand a different kind or
level of scientific vigilance than those of the
past?
Background Balancing Openness and Security, Round
I - The Cold War During the Cold War, there was
heated debate about how to balance the desire of
academic scientists to maintain open communication with
the need to consider national security concerns. At the
time, Soviet scientists were attending scientific
conferences and probing the open scientific and
technical literature for information that would advance
the their weapons program and strengthen the capacity of
their military. This siphoning of scientific and
technical information and know-how from the U.S.
prompted the Department of Defense (DOD) to propose
restrictions on the dissemination of some unclassified
basic research results and to deny foreign nationals
access to "sensitive" research facilities and campuses.
The academic community was disturbed by the DOD's move
to restrict the flow of unclassified information and
eventually several universities (MIT, Caltech, and
Stanford) notified the Administration that they would
refuse to engage in "sensitive" but unclassified
research if prepublication reviews were enacted.
In 1982, largely in response to concerns voiced by
the academic community, a DOD-University Forum was
established to encourage communication between the
academic and defense communities about balancing
openness and security. Shortly thereafter, the National
Academy of Sciences convened a Panel on Scientific
Communications and National Security chaired by Dale R.
Corson, physicist and President emeritus of Cornell
University. The panel was asked to examine the various
aspects of controls on scientific communication and
suggest how to balance competing concerns. The Corson
panel concluded that a substantial amount of
technological information with military applications had
been transferred to the USSR, but that the majority of
such information had not originated in the open
literature. In addition, the committee concluded that,
"the long-term security of the United States depends in
large part…on the vigorous research and development
effort that openness helps to nurture."
In response to continued discussions about the
restrictions on access to scientific research results
and the recommendations made in the Corson Report, the
Reagan Administration issued National Security Decision
Directive 189 (NSDD-189) in 1985. This directive stated
that the only mechanism for restricting the
dissemination of fundamental research results was
classification.
The end of the Cold War, however, did not end
concerns about weapons of mass destruction (WMD) or
concerns about the transfer of technology to enemies.
With the break-up of the Soviet Union, there were
reports of thefts and sales of WMD by and to rogue
nations and terrorist groups.
Recent Federal Efforts Regarding Access and Control
of Scientific Information Even before September 11,
2001, Congress had enacted laws that sought to enhance
the security of some activities relating to science,
technology, and higher education in response to
terrorist events during the 1990s. Since September 11,
2001, Congress and the executive branch have adopted
additional security measures to counteract terrorism.
The September 11 attack, perpetrated in part by foreign
students, and the subsequent anthrax attack brought to a
head issues related to restrictions on visas, access to
hazardous biological agents, and restrictions on
scientific studies that could be used as "blueprints"
for terrorists.
Student Visas and Monitoring Terrorist incidents
during the past decade have raised concerns about which
foreign students should be permitted to study in the
U.S., what courses they may study, what research they
should conduct, and how they should be monitored once in
the U.S. This is in response to such events as the 1993
World Trade Center bombing, in which one of the
terrorists had entered the U.S. on a student visa,
dropped out of school, and yet stayed in the country,
and concerns that foreign students could gain technical
skills while studying in the U.S. that could then be
turned against the U.S.
In 1994, Congress acted to direct the State
Department to develop a "Technology Alert List" of
categories of study that students from countries
identified as "state sponsors of terrorism" should not
be admitted to the U.S. to study. Currently, 16
sensitive categories are on the list ranging from
nuclear technology to information security. In addition
to denying visas to students from "state sponsors of
terrorism" (Cuba, Libya, Iran Iraq, North Korea, Sudan
and Syria), consular officials are instructed to use
additional scrutiny with students from countries subject
to Nonproliferation Export Control regulations (China,
India, Israel, Pakistan and Russia) who wish to study
these fields. There have been recent discussions of
expanding this list to include new sensitive areas in
microbiology and biotechnology, but it is more difficult
to differentiate which courses are sensitive in these
fields because even techniques taught in basic courses
may be used to create biological weapons.
More recently, the October 29, 2001 Presidential
Homeland Security Directive, Combating Terrorism Through
Immigration Policies, stated that "[t]he Government
shall implement measures to… prohibit certain
international students from receiving education and
training in sensitive areas." In May 2002, White House
officials unveiled a proposal to create a panel that
would screen foreign graduate students, post-doctoral
fellows, and scientists who apply for visas to study
"sensitive topics... uniquely available" on U.S.
campuses. The screening would be done by the Interagency
Panel on Advanced Science Security (IPASS), composed of
representatives from the major U.S. science agencies as
well as the State, Justice, and Commerce departments.
(The Department of Homeland Security would participate
if it is created.) The Administration is in the process
of formulating the final IPASS directive.
Concerns have also been raised about ensuring that
foreigners who enter the U.S. as students follow the
approved course of study. In 1996, Congress directed the
Immigration and Naturalization Service (INS) to create
an electronic foreign student tracking system. The
Student Exchange Visa Information System (SEVIS),
authorized by the Congress, was intended to make readily
accessible to immigration officials the names,
residences and educational status of foreign students.
The program was not fully implemented before September
11, 2001, due to both lack of funding and objections
from the higher education community about financial
costs foreign students would incur as the system was
implemented. SEVIS has been strengthened and expanded by
two recent laws - the USA Patriot Act and the Enhanced
Border Security and the Visa Entry Reform Act of 2002.
These Acts fully fund the program, expand the
information included in the system to include the
courses of study of students, and are mandated to be
operational in January 2003.
Restrictions on Access to Hazardous Biological
Agents The bombing of the Alfred P. Murrah Building
in Oklahoma in 1995 spurred the Congress to address the
risks of hazardous biological agents falling into the
wrong hands. In 1996, the Congress directed the
Secretary of the Department of Health and Human Services
(DHHS) to identify hazardous biological agents and
require registration of laboratories that transported
these agents, called "select agent." The Centers for
Disease Control (CDC) was charged with implementing this
program, but before September 11, the program was
under-funded and under-staffed.
Two recent pieces of legislation, the USA Patriot Act
and the Public Health Security and Bioterrorism
Preparedness and Response Act, significantly
strengthened and expanded provisions relating to "select
agents". The Acts require registration not only of the
transport, but also the possession of "select agents."
The Acts expand the government's ability to restrict
access to hazardous agents in three ways: 1) allowing
prosecution of persons suspected of possessing
biological agents to be used for terrorist acts; 2)
providing for fines or imprisonment for any person who
knowingly possesses any biological agent that is not
justified by prophylactic, protective, bona fide
research, or other peaceful purpose; and 3)
criminalizing possession by persons under indictment,
who have been imprisoned for more than a year, fugitives
from justice, unlawful users of a controlled substance,
illegal aliens, aliens not admitted for permanent
residence from certain terrorist countries where trade
is controlled by the Export Administration Act, persons
who have been adjudicated as a "mental defective" or
have been committed to a mental institution, or those
who have been dishonorably discharged from the Armed
Services. No exemptions are permitted and no appeals
process was included.
Sensitive Information The anthrax incidents
prompted concern that scientific studies published in
the open literature could be used as "cookbooks" for
terrorists. In response to such concerns, the Executive
Branch has released several proposals and issued
Executive Orders regarding restricting access to
sensitive information.
On March 18, 2002, Andrew Card issued a memo for the
heads of Executive Departments and Agencies not to
"disclose inappropriately" government information
(regardless of age) relating to weapons of mass
destruction "as well as other information that could be
misused." The memo also created a category of "sensitive
but unclassified information" for information that
cannot be classified, but is too sensitive for
dissemination. However, there are no detailed criteria
for considering when information is "sensitive but
unclassified", and it is unclear how the memo is being
implemented.
Last spring, The Department of Defense (DOD) proposed
a policy that would have restricted scientific
publication. Under the proposal, scientists using funds
from the Department would have needed authorization to
disclose research findings or results. This could have
been extended to unclassified studies involving basic
research, and criminal sanctions could have been imposed
against scientists violating the policy. There has been
bitter opposition to this proposal from the research
community and a scathing critique from U.S. Naval
Research Laboratory. In response to this opposition, the
DOD has withdrawn the policy and is revising it.
Currently, the Administration is considering a policy
that would allow federal pre-publication review of
sensitive federally funded research. Few details are
available at this point, though Condaleeza Rice stated
in a letter to Dr. Harold Brown, Co-Chairman of the
Center for Strategic and International Studies, that
while the Administration was reviewing policies
pertaining to sensitive but unclassified research, "…the
policy on the transfer of scientific, technical, and
engineering information set forth in NSDD-189 shall
remain in effect, and we will ensure that this policy is
followed." In addition to the policies under review by
the Administration, several Federal agencies are
considering policies pertaining to the open exchange of
scientific information. Recently, the Department of
Health and Human Services, the United States Department
of Agriculture, and the Environmental Protection Agency,
agencies that sponsor civilian research, were given the
authority to classify documents by Executive Order. As a
result, access to scientific information that several
years ago would have been openly available may now be
restricted through classification.
Academic and Research Community Response The
academic and research community has also been struggling
with how to respond to new threats. The National Academy
of Sciences (NAS), the American Society for Microbiology
(ASM), the American Association of University Presidents
(AAUP), and the Massachusetts Institute of Technology
(MIT) have convened panels to study balancing national
security concerns and access to scientific information
and research materials.
The ASM, the publisher of 11 scientific journals,
recently established formal guidelines for the
pre-publication review and publication of "sensitive
unclassified" research results and information. Under
these guidelines, reviewers will flag manuscripts that
may pose security concerns and then the editor and
publications board will make a final decision as to
whether to continue the review process or reject the
manuscript. At the request of Dr. Ronald Atlas, the
President of the ASM, the National Academy will hold a
meeting in January of publishers dealing with biology
research that could have public safety implications.
This is in addition to a panel chaired by MIT professor
Gerald Fink, to study research standards and practices
to prevent destructive application of advanced
biotechnology, and a series of science and security
roundtables the Academy will convene around the country
to solicit input from the scientific community on how
best to balance the competing requirements of national
security and unfettered scientific inquiry.
MIT recently published a report entitled In the
Public Interest, which states its policies on access to,
and disclosure of scientific information. The scope of
the study included treatment of classified research and
materials, consideration of developing restrictions on
access to, and disclosure of sensitive scientific
information, treatment of select agents, and export
controls. While reaffirming their concerns about
security, MIT stressed the importance of an open
intellectual environment on campus.
In deciding how to publish a recent report, the
National Academy of Sciences struggled with the issue of
what information should be restricted. Due to concerns
about "sensitive unclassified information," the National
Academy of Science recently released a report entitled
Countering Agricultural Bioterrorism in two parts, one
available to the general public and a second part
containing the "sensitive unclassified information"
available only to the Administration and Congress. The
U.S. Department of Agriculture (USDA) asked that
publication of the report be delayed indefinitely
because of possible national security-related concerns,
even though the U.S. Army, the F.B.I., and the Office of
Homeland Security raised no security concerns. After
discussions between the Academy and the USDA, the
Academy agreed that the portions of the report that the
USDA was concerned about would be withheld from
publication.
Current Issues Balancing Openness and Security,
Round II - The War on Terrorism The current debate on
security issues that may require restrictions on the
conduct of research, including limits on the
dissemination of "sensitive but unclassified"
information and restrictions on the number and
activities of foreign-born faculty and students, is
similar to the Cold War debate about openness and
security. Important differences, however, include an
enemy that is more difficult to identify, the new tools
in biotechnology that can turn basic agents and
technologies into powerful weapons, and the vast amounts
of information available on Internet. Two emerging
issues are the focus of this hearing - the dissemination
of sensitive information and restrictions on foreign
students.
Restrictions on the Flow of Scientific
Information There is an ongoing discussion about when
unclassified scientific results and information should
be subjected to pre-publication review in order to
prevent the inadvertent publication of information that
could be used by a terrorist in an attack.
Several recent research publications have stirred the
debate about restrictions on the open publication of
sensitive but unclassified research results. In one
case, scientists in Australia working to boost the
immune system in response to a viral infection
inadvertently discovered how to turn a virus turn into a
deadly pathogen. In the second case, researchers at the
State University of New York - Stony Brook synthesized
the virus that causes polio from scratch using common
chemicals and biological agents and techniques. In each
case scientists published in the open literature
scientific findings that could be used by a terrorist to
create an enhanced bio-warfare agent.
It is clear that terrorists could use research
results currently published in the open literature to
cause harm. However, in each of the above cases,
scientists and editors weighed the benefits gained by
disseminating the study with the risks, and decided that
the benefits outweighed the risk. These benefits include
advancing the science in an area where vaccines and
cures are discovered for diseases. Scientists worry that
in attempting to protect the U.S., the government could
impose laws that would restrict publication of sensitive
research (including research not funded by the
government). The adverse effects of this may include
slowing scientific progress, and dissuading students and
faculty from studying and working in sensitive areas
where research is needed.
Foreign Students Another key question is what
courses, research and materials foreign students should
be permitted to be involved in or access. In science and
technology, foreign students make up about a third of
all graduate students and contribute to the U.S.
scientific effort in this capacity. In 1998, foreign
students made up 30% of graduate students studying
science and engineering in the U.S. and 33% of U.S.
science and engineering doctoral recipients (52% in
engineering, 49% in mathematics and computer sciences
and 40% in physical sciences). Many of these students
remain in the U.S. upon graduation. Others return to
their native countries, becoming leaders of the
scientific efforts in those nations. However, the
potential exists for a foreigner to gain scientific and
technological skills as a student that could be used in
planning and executing a terrorist attack. This was a
concern during the Cold War, and it persists today,
especially in the area of biotechnology.
As discussed earlier, Congress has recently passed
laws to enhance foreign student monitoring and the White
House is considering a program that would restrict
certain students from studying sensitive courses and
conducting sensitive research (IPASS). Such efforts are
aimed at assuring that foreigners cannot enter the U.S.
on student visas in order to cause harm to the U.S. and
that foreign students cannot receive education in
sensitive areas that they could then turn against the
U.S. However, the academic community worries that
passing such restrictions may dissuade foreign students
from coming to the U.S., and thereby cripple our
scientific research efforts. In addition, many have
pointed out that U.S. citizens can pose similar risks,
noting the likelihood that a U.S. citizen propagated the
anthrax incidents.
Witnesses John Marburger, Ph.D., Director of the
Office of Science and Technology (OSTP). As Director of
OSTP, Dr. Marburger also co-chairs the President's
Council of Advisors on Science and Technology and
oversees the National Science and Technology Council.
Prior to joining OSTP, Dr. Marburger served as President
of the State University of New York-Stony Brook and as
Director of the Brookhaven National Laboratory (BNL).
Before becoming President of SUNY-Stony Brook, he was
Professor of Physics and Electrical Engineering at the
University of Southern California, serving as Physics
Department Chairman and Dean of the College of Letters,
Arts and Sciences in the 1970's. In the fall of 1994 he
returned to the faculty at Stony Brook, teaching and
doing research in optical science as a University
Professor. Three years later he became President of
Brookhaven Science Associates, a partnership between the
university and Battelle Memorial Institute that competed
for and won the contract to operate BNL.
Ronald Atlas, Ph.D, President, American Society for
Microbiology (ASM); Dean of the Graduate School and
Professor of Biology, University of Louisville
(Louisville, KY). Dr. Atlas is co-director of the Center
for the Deterrence of Biowarfare and Bioterrorism at the
University of Louisville, has been chair of the ASM Task
Force on Biological Weapons for past 7 years and has
advised the U.S. government on policy issues related to
the deterrence of bioterrorism and to the medical
response to bioterrorism. He received the ASM Award for
Applied and Environmental Microbiology. His other
research honors have included being elected a fellow in
the American Academy of Microbiology, receiving the
Edmund Youde Lectureship Award in Hong Kong, and being
appointed Extraordinary Professor of Microbiology at the
University of Pretoria, South Africa. M.R.C
Greenwood, Ph.D., Chancellor, University of California,
Santa Cruz. As chief executive, Chancellor Greenwood
oversees a research university with an uncommon
commitment to undergraduate education, and with combined
undergraduate and graduate enrollments of nearly 12,000
matriculated students and an annual total budget of
approximately $350 million. In addition to her position
as Chancellor, Dr. Greenwood also holds a UC Santa Cruz
appointment as Professor of Biology. Prior to her UC
Santa Cruz appointments, Chancellor Greenwood served as
Dean of Graduate Studies, Vice Provost for Academic
Outreach, and Professor of Biology and Internal Medicine
at the University of California, Davis. Previously, Dr.
Greenwood taught at Vassar College where she was the
John Guy Vassar Professor of Natural Sciences, Chair of
the Department of Biology, and Director of the
Undergraduate Research Summer Institute. From
November 1993 to May 1995, Dr. Greenwood held an
appointment as Associate Director for Science at the
Office of Science and Technology Policy (OSTP) in the
Executive Office of the President of the United States.
In that position, she supervised the Science Division,
providing direction on a broad array of scientific areas
in support of the President's objectives, such as budget
development for the multibillion-dollar fundamental
science national effort, and development of science
policy documents, including Science in the National
Interest. In addition, she was responsible for
interagency coordination Sheila Widnall, Ph.D.,
Institute Professor, and Professor of Aeronautics and
Astronautics and Chair, Ad Hoc Faculty Committee on
Access to and Disclosure of Scientific Information,
Massachusetts Institute of Technology (MIT). Prof.
Widnall received her B.Sc. (1960), M.S. (1961), and
Sc.D. (1964) in Aeronautics and Astronautics from MIT.
She was appointed Abby Rockefeller Mauze Professor of
Aeronautics and Astronautics in 1986. She served as
Associate Provost, Massachusetts Institute of Technology
from 1992-1993 and as Secretary of the Air Force from
1993-1997. Professor Widnall stepped down from her
position as Secretary of the Air Force on October 31,
1997 to return to her faculty position at MIT. As
Secretary of the Air Force, Dr. Widnall was responsible
for all the affairs of the Department of the Air Force
including recruiting, organizing, training,
administration, logistical support, maintenance, and
welfare of personnel. Dr. Widnall was also responsible
for research and development and other activities
prescribed by the President or the Secretary of Defense.
Since returning to MIT, she has been active in the Lean
Aerospace Initiative with special emphasis on the space
and policy focus teams. Since returning to MIT, she has
been active in the Lean Aerospace Initiative with
special emphasis on the space and policy focus teams.
Dr. Widnall chaired the recent MIT ad hoc faculty
committee that produced the report, "In the Public
Interest," which addressed access to and disclosure of
scientific information. Appendix I: Summary of
Legislation 1994 Amendment to the Immigration and
Nationality Act This amendment to the Immigration and
Nationality Act (8 U.S.C. 212(a)(3)(i)(II)) required
consular officials to deny visas for U.S. study in
sensitive fields. Pursuant to this Act, the State
Department developed the "Technology Alert List" which
lists 16 categories of study that students from
countries identified as "state sponsors of terrorism"
should not be admitted to the U.S. to study.
Antiterrorism and Death Penalty Act of 1996 (P.L.
104-132) This Act, which was passed partly in
response to the 1995 bombing of the Alfred P. Murrah
Building in Oklahoma City, required the Secretary of the
Department of Health and Human Services (DHHS) to
identify hazardous biological agents and require
registration of laboratories that transport hazardous
biological agents. The law did not require registration
of laboratories that used any of the "select agents" or
reporting of existing inventory in laboratories. In
addition, researchers and laboratories that possessed
stockpiled strains in freezers but did not plan to
transport them did not have to register and report to
the government. The provisions in this act were
strengthened and expanded by two recent pieces of
legislation, the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA Patriot Act) of 2001 (107-56)
and the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (P.L. 107-188).
Illegal Immigration Reform and Responsibility Act of
1996 This Act was passed in response to concerns
that terrorists could use foreign student status as a
way of entering the U.S., after one of the 1993 World
Trade Center terrorists had entered the U.S. on a
student visa, dropped out of school, and yet stayed in
the country. The Act authorized an electronic foreign
student tracking system. The Student Exchange Visa
Information System (SEVIS) was intended to make readily
accessible to immigration officials the names,
residences and educational status of foreign students.
The program was not fully implemented before September
11, 2001, largely due to objections from the higher
education community about financial costs foreign
students would incur as the system was implemented. The
provisions of this Act were strengthened and expanded by
the USA Patriot Act and the Enhanced Border Security and
Visa Entry Reform Act of 2002 (P.L. 107-173).
Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act) of 2001 (107-56 This Act
increased foreign student monitoring, restricted access
of potential terrorists to hazardous biological agents,
and gave the government access to some information about
students and their Internet usage. In addition, it
authorized $36 million in appropriations to implement
the SEVIS foreign student monitoring system authorized
in 1996.
Public Health Security and Bioterrorism Preparedness
and Response Act of 2002 (P.L. 107-188) This Act,
which was signed into law on June 12, 2002, expands upon
the Antiterrorism and Death Penalty Act of 1996, and,
among other things, requires the Department of Health
and Human Services (DHHS) Secretary to register
facilities and individuals in possession of biological
agents and toxins that pose a severe threat to public
health and safety. It requires the DHHS to transmit new
safety and security requirements for such facilities and
individuals. In addition, the act grants authority to
the Secretary of Agriculture to establish a parallel set
of requirements for facilities that handle agents and
toxins that threaten crops and livestock.
Enhanced Border Security and Visa Entry Reform Act of
2002 (P.L. 107-173) This Act was signed into law on
May 14, 2002. Among other things, it expands the foreign
student monitoring system (Student Exchange Visa
Information System) requirements of Illegal Immigration
Reform and Responsibility Act of 1996 and requires that
the SEVIS system be fully operational by January 30,
2003. In addition, it requires the Immigration and
Naturalization Service to periodically conduct a review
of educational institutions enrolling foreign students
to monitor their compliance with foreign student
reporting requirements.
|