Segment 2 Of 2 Previous Hearing Segment(1)
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ANSWERS TO POST-HEARING QUESTIONS
Responses by Dr. John H. Marburger, III, Director, Office of Science and Technology Policy
Questions submitted by Chairman Sherwood Boehlert
Q1. What is the status of the development of the IPASS system and the timeline for implementation given the establishment of the Department of Homeland Security?
A1. The status of IPASS is pending. IPASS was developed against the understanding that visa policy would continue to be bifurcated between the Department of State and the Department of Justice. Now that the Department of Homeland Security has been created, the role of establishing visa policy is in transition. Within the Department of Homeland Security, the Bureau of Borders and Transportation Security (BTS) has established a transition team to advise on overseas visa screening procedures and is working on the development of a Memorandum of Understanding with the State Department to identify how the consular officials would interact with locally placed DHS officials. However, the question of adjudicating visas, the idea that some individuals would need a substantive scrub if they seek access to specialized training and knowledge, is likely to fall within the scope of the Bureau of Immigration Services. The SEVIS enforcement remains within the BTS Bureau. Interaction with DHS and the Homeland Security Council continues on the need for an IPASS-like interagency screening process for some advanced science and technology international student applicants.
Q2. Are you developing a protocol to screen foreign nationals applying for visas under the IPASS system? If so, will the academic community and others be able to comment on the protocol before it is enacted? When might such a protocol be developed and available for review?
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A2. (See answer to question 1.) In the absence of the official establishment of IPASS, the existing status quo continues to be the MANTIS screening process which was developed for export controlled technologies using a Technology Alert List. The MANTIS screening process is coordinated by the State Consular Affairs office in consultation with State-Nonproliferation Bureau. The State Department added public domain coursework to the Technology Alert List in August 2002 leading to long visa delays for some international students and scientists.
Q3. There are anecdotal reports of foreign students, including students who had previously studied in the U.S., having difficulty obtaining student visas.
Q3a. Have foreign students had difficulties obtaining visas in a timely manner, and if so, what caused the delays?
A3a. (See previous answer.) For the past four years, the annual number of non-immigrant visa applications has varied between 8 and 10 million, of which about 75 percent are granted. There are multiple attempts per individual, so the actual success rate of individuals is higher. Of those admitted, approximately 20 percent are in the F, M, and J categories in which students and exchange visitors fall. In 2000, for example, those admitted in these categories totaled about one million individuals. The number of science and technology related visa applications (MANTIS cables) sent to Washington went from 2,000 in CY01 to 14,000 in CY02 and severely overburdened the review system leading to huge backlogs and long waits. Solutions focus on removing these backlogs and changing the way cases are processed, without sacrificing the rigor of the review.
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Very few students have been denied a visa. Detailed statistics for rates of acceptance and rejection over the past five years in various visa categories from various countries show a small but significant decrease in acceptance rates over all visa categories. Changes in student and scientist rates do not appear to differ from those of other categories.
We believe the visa situation can be improved. We think we understand what is happening, where the problems are, and how they can be addressed. My office, working closely with the Homeland Security Council, has had good cooperation from the Departments of State, Justice, and Homeland Security, all of whom agree that improvements are needed. And there have been notable successes, including cooperation last fall among six offices and agencies to identify and resolve inefficiencies and duplications in the CONDOR process (anti-terrorist screening) that cleared out nearly 10,000 applications from the backlog. The same group is now working on similar issues in MANTIS.
Q3b. How will IPASS affect the time it takes a foreign student who has been accepted at a U.S. institution of higher education to receive a student visa?
A3b. The status of IPASS is pending (see answer to question 1). One of the issues being discussed relates to a potential downside to IPASS, as we consider the current visa situation, elaborated in question 3 above. The worst aspect of the situation is the long delays in processing some visa applications. If IPASS adds even more steps to the process without adding value, it may increase wait times, which is not our intention. The time it takes to screen all visa applications, including students, will be enhanced as the Department of Homeland Security centralizes, consolidates and automates the various watch lists used by FBI, CIA and others. Those students who are caught up in the MANTIS process are likely to continue to experience delays. Janice Jacobs, DAS, recently testified to the House Science Committee that the State Department is preparing to dedicate more staff to handle the MANTIS workload. FBI is also adding additional staff.
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Q4. In your testimony, you stated that the IPASS system would focus on sensitive science and technology areas that are uniquely available in the U.S.
Q4a. In the implementation of the IPASS system, how will you define sensitive and how will you define uniquely available, as they will be applied to science and technology areas?
A4a. The IPASS concept was designed to recognize that much coursework, education and research training is already available through the worldwide web, through universities and research institutes abroad and through globally available scientific publications. The coinage of ''sensitive and uniquely available'' knowledge and training was meant to build high walls around what was worth protecting, rather than waste resources on ''sensitive'' dual use know-how which a terrorist could easily find elsewhere, such as DNA sequences for particular pathogens. One of the first tasks of the IPASS group as drafted was to define what these areas of unique USG expertise might be, (in the public domain) and who might be trying to acquire such know-how. IPASS was challenged to define the relative risk parameters for when we should take a closer look at some international individuals in the advanced sciences who, based on a combination of criteria (e.g., institutional affiliation), might pose a national security risk.
Q4b. Who will determine which science and technology areas and information are sensitive and uniquely available in the U.S.? What role will those outside of the Federal Government play in determining what is sensitive and what is uniquely available?
A4b. Experts in each discipline would have the charge to identify research with direct application to weapons of mass destruction for which enhanced screening for some individuals may be advisable. Scientific progress is dynamic and it is thought that any static list would be outdated before long. Some scientific groups are already engaged in debate about what is sensitive and possibly a national security risk in their discussions of scientific publications. The National Academy of Sciences, the American Society for Microbiology and other such groups have already started to carefully consider whether an open publication would contain a recipe for terrorists, or too openly expose vulnerabilities. These cases are rare, however as with education, the judgment of those who fully understand each discipline is important in making case-by-case determinations. OSTP maintains an ongoing dialogue with academic institutions and the scientific community and is receptive to advice that they provide.
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Q5. What does ''sensitive but unclassified'' mean in the March 18, 2002 Andrew Card memo that directed agencies not to disclose inappropriately sensitive material? How is this memo being implemented? Who is deciding what is sensitive?
A5. Chief of Staff Andrew Card sent a memorandum to Heads of Executive Departments and Agencies on March 19, 2002, reminding them of their ''obligation to safeguard Government records regarding weapons of mass destruction.'' As noted in the memorandum, he asked the Acting Director of the Information Security Oversight Office and the Co-Directors of the Justice Department's Office of Information and Privacy to prepare guidance for reviewing government information regarding weapons of mass destruction, as well as other information that could be misused to harm the security of our nation and the safety of our people. That attached memorandum states: ''. . . departments and agencies maintain and control sensitive information related to America's homeland security that might not meet one or more of the standards for classification set forth in Part I of Executive Order 12958. The need to protect such sensitive information from inappropriate disclosure should be carefully considered, on a case-by-case basis, together with the benefits that result from the open and efficient exchange of scientific, technical, and like information.'' As indicated in this memorandum, federal departments and agencies are to weigh the need to protect such sensitive information, on a case-by-case basis, with the benefits that result from the open and efficient exchange of scientific, technical, and like information.
Traditionally, each agency has identified the sensitive but unclassified information under its control that it seeks to safeguard. This would include information such as taxpayer data, personal or medical data, and information that would reveal sensitive deliberative processes. The administration is working to provide prescriptive guidance to all agencies that will assist them in identifying and safeguarding sensitive but unclassified information related to homeland security—and sharing it with State and local government officials when appropriate—in a manner that is consistent with existing law and policy on safeguarding, disclosing and disseminating government information. That means, among other things, that such information may be withheld from public disclosure only when it warrants protection under one of the nine exemptions of the Freedom of Information Act.
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Q6. Due to concerns about ''sensitive unclassified information,'' the National Academy of Sciences (NAS) published its report entitled Countering Agricultural Bioterrorism in two parts, one available to the general public and a second available only to the Administration and Congress. Apparently this was done at the request of the U.S. Department of Agriculture.
Q6a. What were the circumstances that led to this decision, and was the Office of Homeland Security or other agencies concerned about making the report public?
A6a. The U.S. Department of Agriculture reviewed the report and identified portions that contained sensitive material. The Office of Homeland Security was involved in the process.
Q6b. Who decided what information would be withheld from the report?
A6b. The decision of what to withhold from the public report was made by the NAS committee that wrote the report.
Q6c. Given that none of the information in the Academy report is classified and much of it can be obtained over the Internet, what exactly is it about the presentation of the information in the report qualifies it as ''sensitive''?
A6c. The portion of the report believed to be sensitive is a collection and analysis of disparate information that discloses vulnerabilities in the food system. The USDA's caution reflects a sense of responsibility toward not providing a roadmap for terrorists.
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Q6d. What are the penalties for disclosure of sensitive unclassified information, such as that in the NAS agricultural bioterrorism report?
A6d. The information contained in Appendix E of the NAS report is exempt from FOIA; however, this only gives NAS the right to limit the distribution of the report. To my knowledge there is no penalty for disclosure of sensitive information.
Q7. Within the past year, the Department of Health and Human Services, the Environmental Protection Agency, and the U.S. Department of Agriculture were given the authority for original document classification. Each of these agencies funds, among other things, basic research.
Q7a. Under what circumstances will documents be classified, and who will make the decision to do so?
A7a. Agencies' new authority to classify documents is still governed by the guidance of Executive Order 12958 (April 17, 1995, as amended, including E.O. 13292 dated March 28, 2003). The authority is granted to the agency or department head and may be delegated, as appropriate.
Q7b. What impact will this new authority have on basic research funded by these agencies and publication of scientific results and information?
A7b. The provisions of National Security Decision Directive–189 dictate that, to the maximum extent possible, the results of fundamental research will not be restricted, and cannot be unless such information is under the control of the Federal Government. The results of basic research funded by the Federal Government under a research grant are typically not controlled by the government, and publication or other dissemination of the results is determined by the investigator and his or her institution. The new authority does not alter these concepts in any way.
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Q8. Given that scientific research is a truly international activity, has the Administration discussed the national security implications of scientific activities with our allies?
A8. The Administration has had informal discussions with Science Minister counterparts in the G8 countries on at least three occasions to voice our combined interest in preventing would-be terrorists from abusing the openness of the scientific enterprise. OSTP has described the rationale behind the Administration's policy measures with respect to international students and select agent registration rules. OSTP has reassured international partners that the current level of visa delays and backlogs is not a reflection of the Administration's policy (which continues to welcome international students and researchers) but rather the result of an overloaded system in the post 9–11 environment.
Q9. The hearing focused on how to set policies and practices that balance open scientific communication and national security. How will you know that a policy is not in balance? Short of a major national security breach, or academic breakdown, what indicators would signal that a given policy is out of balance, and either too restrictive or too open?
A9. This is an interesting question, given the parameters ''short of a national security breach or academic breakdown,'' and one that we are also concerned about. For example, how can one determine that too restrictive policies have resulted in an unwillingness among scientists to pursue particular avenues of research? Obviously, stories in the press about universities returning funding to a government agency are possible indicators of a problem and we have asked professional societies and associations to help gather information to assess the situation. It is important to learn if these stories are accurate representations of a trend or not. Are there more sensitive markers that can help prevent problems before they occur? If so, this would be preferable in order to ensure that counter-terrorism research proceeds in an efficient and productive manner with the best and brightest minds we can bring to these challenges.
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As far as ''too open'' a policy, it seems clear that those in the best position to assess the wisdom of dissemination of research results are likely to be the investigators themselves. We encourage the efforts of the scientific community, including the scientific journal editors, to develop procedures for review of manuscripts and consideration of possible misuse of research findings in order to minimize this occurrence.
Questions submitted by Ranking Minority Member Ralph M. Hall
Q1. All of the witnesses referred repeatedly to the value of communication between the science and security communities to deal with the questions raised by this hearing.
Q1a. Are there examples in the Federal Government of effective organizations and methods for conducting such a dialogue?
A1a. Because science and technology are critical to enhancing homeland and national security, it is imperative that these two distinct communities communicate and cooperate effectively. OSTP, in conjunction with other components of the Executive Office of the President, is working to establish and maintain productive interactions between the federal agencies that support and conduct research and development and those with security-related responsibilities.
For example, after 9–11, security concerns have been raised about the nature of the education and training provided to international students. OSTP and the Homeland Security Council have gathered both security agencies (intelligence, counter-intelligence and law enforcement) and science agencies (NSF, NIST, NASA, DOE, DOD, NIH, etc.) at the same table to surface the actual source of concern, to articulate a way to address the issue and capture the new policy approach in a way which results in both enhanced security and sustains the supportive U.S. scientific environment for research and development. The science, security and counterintelligence communities have participated fully in the meetings to develop the package of characteristics that could determine when an international student is applying for advanced science and technology fields with application to weapons of mass destruction.
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OSTP has also taken the lead on inviting scientists, security and counter-intelligence officials from DOE, DOD, NASA, USDA, NIH, etc.. . .to meet to share best practices in screening and tracking international guests at their research facilities. This dialogue was also very effective in surfacing the reasoning behind each others' perspectives and concerns and in communicating how U.S. security relies, in part, on scientific expertise that is only available from overseas, such as those who have experience handling a foot-and-mouth or Rift Valley fever disease outbreak.
Q1b. How would you structure such communication?
A1b. Communication between the scientific and the security community can be structured in various ways within each agency in order to support each other's work. It is highly unlikely that one size would fit all. The Department of Energy had commissioned a report on Science and Security(see footnote 2) which proposed a line-management, decentralized structure for the National Labs at DOE. Laboratories which conduct classified research would have different needs than laboratories which are essentially open university-like campuses which conduct no classified research. An essential first step in structuring communication would be a dialogue to surface each other's needs before imposing blanket security policies. OSTP is actively encouraging information sharing and dialogue between the scientists and their security counterparts within each agency as well as on an interagency basis.
Q1c. Should this be established statutorily or informally?
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A1c. Agencies already have security policies in place which continue to evolve based on newly emerging circumstances. I have seen no evidence that imposing statutes would fulfill any essential purpose at this time.
Q1d. If we rely on informal structures, how do we ensure they remain viable over time?
A1d. We ensure that the security and science communities communicate effectively by holding the Agency directors accountable for both. Agency directors have a direct stake in ensuring that they are not allowing people into their laboratories and facilities who have links to terrorism. Agency directors also have a direct stake in continuing the best possible research in the best possible way, which in most fields implies a continued need to welcome the brightest researchers in a field. Erring too far on either side would generate certain criticism. There is clear recognition in this Administration that synergy between science and security is not only possible, but necessary. OSTP will continue to work to support security interests and ensure continued progress in the U.S. research enterprise.
Q2. The Federal Government has found it valuable to conduct certain classified research in physical sciences at distinct facilities at some universities, for instance Lincoln Laboratory at the Massachusetts Institute of Technology.
Q2a. Would there be equivalent value in establishing similar facilities for life sciences research at appropriate universities? Do they exist already? What are the barriers to creation?
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Q2b. Will the creation of a Department contribute to the conduct of bioterrorism research?
Q2c. Are such facilities consistent with national policies on discouraging proliferation of biological weapons and our responsibilities under international law and treaties in this area?
A2. There will be a need to perform some restricted research in areas relevant to combating the threat from pathogens and toxins, but there are a number of mechanisms for conducting such enduring research, such as work through the in-house Ft. Detrick facility (by a mixture of DHS, university and private sector researchers), other government facilities, various types of Federally Funded Research and Development Centers, or contracts with the private sector. DHS is exploring this issue.
Q3. You testified at the hearing, ''I'm aware that there is an impression that the Administration is considering a policy of pre-publication review of sensitive federally-funded research. This is incorrect. This is not the thrust of the considerations and it's important to note that this process is in the formative stage.'' A November 1, 2002 article in The Chronicle of Higher Education indicates universities are increasingly refusing to sign research contracts with ''sensitive'' clauses.
Q3a. During FY01 and FY02, how many research requests for proposals, grants or contracts specified the research would be ''sensitive''?
Q3b. During FY01 and FY02, how many contracts with research institutions were not signed due to ''sensitive'' clauses including clauses that limit foreign student participation?
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A3. OSTP does not have comprehensive statistics from funding agencies on research proposals that might be considered sensitive. However, we are aware of conditions that some agencies may place on funding that universities may find either objectionable or difficult to accommodate, including limits on foreign student involvement. Such language may be customary or ''boilerplate'' in DOD contracts for applied research, for example, and subject to negotiation as part of the award process. In our current security-conscious environment, I would not be surprised to learn that both negotiating parties have become more sensitive to such language, making the process of reaching agreement more contentious. The universities are free to turn away from these constraints if it is in their interests to do so, and the agencies must be able to impose such conditions if the nature of the research demands them. OSTP is in contact with research funding agencies on these issues, and if it becomes apparent that needed research is not getting done under these conditions, then it will be necessary to assess the need for a change or new mechanisms to accommodate these needs. In this instance, OSTP would, as is customary, convene an interagency group to address them and promote a satisfactory resolution.
Q4. What are the procedures that are in place to allow for the reclassification of fundamental research as ''sensitive homeland security information''? Are they different from the reclassification procedures cited in National Security Decision Directive 189?
A4. The procedures cited in National Security Decision Directive 189 have been reaffirmed by the Administration in a November 1, 2001, letter by Condoleeza Rice, Assistant to the President for National Security Affairs, stating ''the policy on the transfer of scientific, technical, and engineering information set forth in the 1985 NSDD–l89 shall remain in effect, and we will ensure that this policy is followed.''
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Q5. The Department of Defense, in a draft directive on ''Mandatory Procedures for Research and Technology Protection Within the DOD'' (March 2002), described a process for protecting ''Critical Research Technologies'' (CRT) and ''Critical Program Information'' (CPI) in the Department's research, development, test and evaluation (RDT&E) activities. The Boston Globe reported on May 9 that this draft had been withdrawn. Attempting to verify that this was indeed the case, we were informed that DOD was continuing efforts to develop a plan, and that this plan was not to be released to persons outside the Department. What is the status of DOD's efforts to develop policies and procedures for protecting what it determines to be critical research technology and critical program information?
A5. This question should be directed to the Department of Defense.
Q6. If the DOD is still contemplating the draft directive is Section C3.4.2 of the draft still being considered:
Q6a. Would universities or contractors performing basic research funded by the Department of Defense fall under the definition of an ''RDT&E site'' as contemplated by this directive?
A6a. This question should be directed to the Department of Defense.
Q6b. Given your statement at the hearing, what directions have been given to relevant offices at federal agencies to assure continued adherence to the policy established in National Security Decision Directive 189?
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A6b. Relevant offices and federal agencies are following the policy established in National Security Decision Directive 189 and reaffirmed by the Assistant to the President for National Security Affairs Condoleezza Rice, in a November 1, 2001, letter stating ''. . .the policy on the transfer of scientific, technical, and engineering information set forth in the 1985 NSDD–l89 shall remain in effect, and we will ensure that this policy is followed.''
Q7. Given that science and technology are highly specialized pursuits and that open communication within and between the disciplines is critical for the advancement of science and technology, will reviewers with the specialized knowledge of these disciplines be integrated into the classification decision-making process at agencies like the Departments of State, Defense Agriculture, HHS and Energy, and the EPA?
A7. I would refer you to each these agencies for more information on individual agency classification processes. OSTP will be monitoring agency actions in this area to ensure consistency.
Q8. Who will be the final arbiter for scientific classification questions? Will the directors of CDC, NIH and NSF be part of the decision-making process that determines which particular information is ''sensitive'' and thereby subject to restricted access?
A8. According to Executive Order 12958, as amended, the Secretary of Health and Human Services has classification authority and oversees the Centers for Disease Control and the National Institutes of Health. The National Science Foundation does not have the authority to classify information. As per the direction in Secretary Card's March 19, 2002 memorandum, each department and agency is responsible for reviewing their records management procedures. The memorandum also notes that if agency officials need assistance in applying exemptions of the Freedom of Information Act (FOIA) to such sensitive information, they should contact the Justice Department's Office of Information and Privacy. The Directors of CDC, NIH, and NSF certainly will be consulted in developing the guidance for Sensitive Homeland Security Information.
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Q9. What role does OSTP or the Administration plan to exert in determining what is appropriate for publication in scientific journals?
A9. OSTP has already served on the Journal Editors and Authors Group, which published a statement of policy in February 2003 in Nature, Science, and the Proceedings of the National Academy of Sciences, on publication of scientific journal articles and responsible communication of results. We believe that an ongoing dialogue with the scientific community is key to engaging and maintaining a sense of responsibility for determining what is appropriate for publication.
Q10. How does the Federal Government ensure that any regulations that restrict publishing within our country also prevent the author from taking his or her product to another country for publication?
A10. There are no restrictions on publishing material that has not been classified other than the discretion of individual researchers and journal editors. Scientific reputation and integrity is highly regarded within the community; bypassing the highly regarded premier peer-reviewed journals would be an unattractive option. There is nothing to prevent individual scientists from communicating their results in their forum of choice.
Q11. Please answer the following questions related to the Interagency Panel on Advanced Science and Security (IPASS):
Q11a. When can we expect the IPASS proposal to be released for review and comment?
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A11a. OSTP, HSC and other relevant agencies will be taking a fresh look at the need for IPASS as initially drafted now that the Department of Homeland Security is established. At this time it is impossible to put a firm timeline on the process.
Q11b. How will IPASS be funded, through congressional appropriations or additional fees placed on visas? If additional fees are imposed, how should we mitigate the adverse impact on students from poorer nations?
A11b. IPASS, as drafted, was a refinement of the existing MANTIS process. The new, unfunded element of IPASS is the charge to provide a substantive screening for some individuals once they are already in the U.S. if they are deemed to transfer into an area which would potentially pose a national security risk given a combination of variables. The DHS is clearly responsible for adjudicating changes to a student's status once they are in the U.S., thus the funding situation would need to be determined by DHS.
Q11c. What additional resources is the State Department receiving to support overseas consulates in conducting enhanced reviews of visas for persons intending to study science, math or engineering?
A11c. This question should be referred to the State Department.
Q11d. Will IPASS be strictly prospective, reviewing only new visa applications?
A11d. No. The Presidential Directive clearly called for a mechanism to screen students who would have access to knowledge or training with direct application to weapons of mass destruction and therefore both students who are newly applying from overseas and those who are already in the U.S. may need to go through the substantive screening process.
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Q11e. Have reviews of the study plans of foreign students currently in the U.S. been conducted? If so, have we found any students whose program of study now raises concerns?
A11e. I would refer your question to the FBI. It is my understanding that the international students who are currently being reviewed are being reviewed because of possible links to terrorism or terrorist organizations and not because of the substance of their course of study. There are also students being investigated for not complying with the terms of their visas; some students have entered on a student visa but not shown up at the school.
Q11f. Universities have indicated to me that a small number of foreign students are being denied access back into the U.S. to continue their studies. Do we have any idea how many foreign students are finding it difficult or impossible to enter the United States in light of the increased focus on visa review?
A11f. The State department testified to the House Science Committee that the number of international individuals going through the MANTIS, or science-related screening being conducted by the State Consular Affairs and State Nonproliferation department, has jumped from 2000 in CY01 to 14,000 in CY02. State was unable to break down the number into visa categories, but the delays and backlogs have been substantial. State relies on several other agencies to complete its MANTIS review, including the FBI. There are anecdotal reports that the delays have led some international students to seek university education elsewhere. In terms of visa denials, the actual numbers have been quite small. Students, and other visa applicants, may be denied for a variety of reasons not related to science, such as links with terrorist organizations, incomplete forms, because they are wanted for criminal activity or because the local consular officer determines that the student is an intending immigrant.
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Q11g. Will IPASS require universities to provide additional information on the students targeted by the system?
A11g. It is possible that additional information about the student's area of research might be requested to facilitate the security screening process on a case by case basis.
Q11h. Will fellow students be questioned about students targeted by the system?
A11h. IPASS is not designed to be an investigative body, rather it is, in concept, a panel of technical experts from both the science and security communities.
Q11i. What legal obligations do universities have to share information with IPASS and, at the same time, protect information on their students?
A11i. The legal obligations are established under the Immigration and Nationality Act. For specific details, I would refer your question to the DHS–Bureau of Immigration and Custom Enforcement.
Q11j. Will professional societies that have foreign student members and activities be required to provide information to IPASS?
A11j. In the concept of IPASS, it was not envisioned that professional societies would be required to provide information. Some professional societies had wondered whether providing information would help alleviate long delays in the visa screening process or facilitate entry/reentry travel of their international members.
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Q11k. What are the procedures for student appeal of a visa denial?
A11k. There is currently no process of appeal for visa denials, including for students. The local consular officer is empowered under existing law to make the final decision on granting or denying a visa for all visa categories.
Q11l. What actions can IPASS take with respect to students that have already been issued visas?
A11l. IPASS as drafted, would be developing combinations of criteria to identify and review individuals in certain advanced science areas, to identify who may pose a national security risk, the same as if a student had applied overseas. Further removal actions would proceed according to established law and practice unless new regulations are crafted.
Questions submitted by Representative Eddie Bernice Johnson
Q1. How do we determine the cost of limiting foreign student participation in the United States? How do we determine when the limits are too strict and need loosening? How do we ensure that, in our zeal for secrecy, we do not just push talented minds to other countries?
A1. The U.S. Commerce Department lists higher education as the fifth largest service-sector export, and the Institute for International Education estimates that international students contribute approximately $12 billion annually to the U.S. economy through tuition and general spending. However, this is just the tip of the iceberg, as it is difficult to quantify the impact of the large number of international students and researchers in areas such as information technology and biomedical research. Although additional visa security screening has been added since 9/11, the reality is that the number of international students attending U.S. Colleges and Universities increased for the current academic year, and there has been only a small decrease in the number of visiting scholars. There are countless scientific and technical fields that make vital direct and indirect contributions to our homeland and national security efforts, and we must continue to support the contributions made by foreign nationals to these efforts while at the same time ensuring that these advances are not taken advantage of by those who would do us harm. I believe that we can and must pursue both of these goals.
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Q2. Are U.S. primary and secondary schools receiving sufficient funding and other assistance to produce the domestic scientists and engineers that can replace those coming from foreign countries?
A2. First, let me say that I don't think that there is any need to replace scientists and engineers that come from other countries. Science is a global enterprise, and the President has stated that ''The United States benefits greatly from international students who study in our country. The United States Government shall continue to foster and support international students.'' That being said, we need to do more to encourage our own students to pursue careers in science, technology, engineering and mathematics, or STEM fields. In the No Child Left Behind Act, the President proposed the creation of a new Math and Science Partnership that would encourage institutions of higher education to partner with school districts to improve their mathematics curriculum and teacher preparation. Each year the President has requested $200 million for the National Science Foundation to operate this program, but it has yet to be fully funded through congressional appropriations.
ANSWERS TO POST-HEARING QUESTIONS
Responses by Ronald M. Atlas, President, American Society for Microbiology; Dean of Graduate School, Professor of Biology, University of Louisville
Questions submitted by Chairman Sherwood Boehlert
Q1. The American Society for Microbiology recently established formal guidelines for the pre-publication review and publication of ''sensitive unclassified'' research and information.
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Q1a. What types of studies might get flagged under this policy?
A1a. All manuscripts are read by multiple reviewers during the peer review process. Each reviewer is asked to be alert for information in the manuscript that might be considered sensitive (dangerous) and to bring that to the attention of the editor. Additionally all manuscripts dealing with select agents are flagged by ASM publication staff for specific review by the editor for such information.
Q1b. Since the guidelines were established, how many manuscripts have been flagged for further review and how many of those were or will be published?
A1b. During 2002 the 11 ASM journals received over 14,000 manuscripts. The typical manuscript had 4–5 authors. About 60 percent were of non-U.S. origin coming from at least 100 foreign countries. 224 of the manuscripts were flagged as ''Select Agent'' manuscripts and received special review by the editor. Of the select agent manuscripts 90 were rejected for scientific reasons having nothing to do with the sensitivity of the information; 57 of these were submitted by non-U.S. authors. 134 of the select agent manuscripts were accepted, 58 with non-U.S. authors. Of all of the manuscripts submitted 2 (<0.015%) of the select agent manuscripts elicited elevated concern, each was considered by the entire Publications Board. The editor entered a dialog with the author and the manuscripts were or are being modified to remove the sensitive information while not weakening the quality and scientific value of the remaining information. It is anticipated that both will be published with modification. Additionally one manuscript was withdrawn by the author who considered some of the information sensitive and self-decided not to publish. A few other authors contacted ASM and after conversation indicated they would not submit the manuscripts as they considered the information to be sensitive.
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Q2. Do you know of any similar efforts, either in the U.S. or abroad, to evaluate manuscripts for security threats? Have there been any discussions of this topic at an international level? What are the drawbacks of creating policies that apply only to the U.S.?
A2. At the request of the ASM the National Academy of Sciences together with the Center for Strategic and International Studies hosted a workshop on January 9, 2003 to consider this topic. At that workshop the editors of Science, Nature, and the Proceedings of the National Academy of Sciences indicated that those journals had instituted review processes, some involving external boards to review manuscripts for sensitive information that could be misused by terrorists. Thus, the efforts are spreading which is essential. Research in the life sciences is international and unless the global scientific community and the world's publishers join the effort little protection will be afforded by the policies of the ASM or other journals.
On January 10 the ASM hosted a meeting of about 50 editors, authors, publishers, and government officials to discuss what journals could do to reduce the threat of bioterrorism. This included editors of the major international biomedical journals. The following statement is a report of the editor/author group.
PREAMBLE
The process of scientific publication, through which new findings are reviewed for quality and then presented to the rest of the scientific community and the public, is a vital element in our national life. New discoveries reported in research papers have helped improve the human condition in myriad ways: protecting public health, multiplying agricultural yields, fostering technological development and economic growth, and enhancing global stability and security.
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But new science, as we know, may sometimes have costs as well as benefits. The prospect that weapons of mass destruction might find their way into the hands of terrorists did not suddenly appear on September 11, 2001. A policy focus on nuclear proliferation, no stranger to the physics community, has been with us for many years. But the events of September 11 brought a new understanding of the urgency of dealing with terrorism. And the subsequent harmful use of infectious agents brought a new set of issues to the life sciences. As a result, questions have been asked by the scientists themselves and by some political leaders about the possibility that new information published in research journals might give aid to those with malevolent ends.
Journals that dealt especially with microbiology, infectious agents, public health and plant and agricultural systems faced these issues earlier than some others, and have attempted to deal with them. The American Society for Microbiology, in particular, urged the National Academy of Sciences to take an active role in organizing a meeting of publishers, scientists, security experts and government officials to explore the issues and discuss what steps might be taken to resolve them. In a one-day workshop at the Academy in Washington co-hosted by the Center for Strategic and International Studies on January 9, 2003, an open forum was held for that purpose. A day later, a group of journal editors, augmented by scientist-authors, government officials and others, held a separate meeting designed to explore possible approaches.
What follows reflects some outcomes of that preliminary discussion. Fundamental is a view, shared by nearly all, that there is information that, although we cannot now capture it with lists or definitions, presents enough risk of use by terrorists that it should not be published. How and by what processes it might be identified will continue to challenge us, because—as all present acknowledged—it is also true that open publication brings benefits not only to public health but also in efforts to combat terrorism.
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The statements follow:
FIRST: The scientific information published in peer-reviewed research journals carries special status, and confers unique responsibilities on editors and authors. We must protect the integrity of the scientific process by publishing manuscripts of high quality, in sufficient detail to permit reproducibility. Without independent verification—a requirement for scientific progress—we can neither advance biomedical research nor provide the knowledge base for building strong biodefense systems.
SECOND: We recognize that the prospect of bioterrorism has raised legitimate concerns about the potential abuse of published information, but also recognize that research in the very same fields will be critical to society in meeting the challenges of defense. We are committed to dealing responsibly and effectively with safety and security issues that may be raised by papers submitted for publication, and to increasing our capacity to identify such issues as they arise.
THIRD: Scientists and their journals should consider the appropriate level and design of processes to accomplish effective review of papers that raise such security issues. Journals in disciplines that have attracted numbers of such papers have already devised procedures that might be employed as models in considering process design. Some of us represent some of those journals; others among us are committed to the timely implementation of such processes, about which we will notify our readers and authors.
FOURTH: We recognize that on occasions an editor may conclude that the potential harm of publication outweighs the potential societal benefits. Under such circumstances, the paper should be modified, or not be published. Scientific information is also communicated by other means: seminars, meetings, electronic posting, etc. Journals and scientific societies can play an important role in encouraging investigators to communicate results of research in ways that maximize public benefits and minimize risks of misuse.
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Q3. The hearing focused on how to set policies and practices that balance open scientific communication and national security. How will you know that a policy is not in balance? Short of a major national security breach, or academic breakdown, what indicators would signal that a given policy is out of balance, and either too restrictive or too open?
A3. The ASM and other journal publication policies with regard to sensitive information should be viewed as an experiment in progress. The ASM has planned a meeting with the council of scientific editors to develop outcome measures which will assess the effectiveness of various journal policies. One plan under discussion is to have regular meetings with authors and editors to determine how well the system is working. This should help determine if a system has crossed the line from responsible citizenship to censorship. We also will monitor the continuing public reaction to manuscripts that are published and will need to consider refinements as questions are raised about specific aspects of information that is published. What is not in place, but which would be useful, would be a mechanism for dialog with the national security community to obtain their insights into the effectiveness of the policy mechanisms, particularly with respect to achieving the desired balance between openness and security.
Questions submitted by Ranking Minority Member Ralph M. Hall
Q1. All of the witnesses referred repeatedly to the value of communication between the science and security communities to deal with the questions raised by this hearing.
Q1a. Are there examples in the Federal Government of effective organization and methods for conducting such a dialogue?
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Q1b. How would you structure such communication?
Q1c. Should this be established statutorily or informally?
Q1d. If we rely on informal structures, how do we ensure they remain viable over time?
A1. There are some mechanisms for communication between select members of the scientific community with the national security community. It is impossible though to judge the effectiveness since these conversations do not involve the broader scientific community and the classified discussions are not subject to a wider dialog. Some groups like the Jasons as well as advisory boards to the DOD presumably are useful to the government but do little to inform the scientific community.
It would be useful to establish a mechanism for a dialog between the scientific and national security communities. This needs to begin with a discussion of what can be accomplished without requiring all those involved in a structure to have security clearances or to find a mechanism for providing the necessary clearances without diminishing the effectiveness of those involved in the dialog to communicate with the broader scientific community and the public. Again this will require balancing seemingly conflicting cultures.
A formal mechanism for the necessary dialog may be needed simply to ensure the necessary funding mechanism to ensure stability over time.
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Q2. The Federal Government has found it valuable to conduct certain classified research in physical sciences at distinct facilities at some universities, for instance Lincoln Laboratory at the Massachusetts Institute of Technology.
Q2a. Would there be equivalent value in establishing similar facilities for life science research at appropriate universities? Do they exist already? What are the barriers to creation?
Q2b. Will the creation of the Department of Homeland Security contribute to the conduct of bioterrorism of research?
Q2c. Are such facilities consistent with national policies on discouraging proliferation of biological weapons and our responsibilities under international law and treaties in this area?
Q2d. The science community argues strongly that restrictions on communication inhibit progress. Yet, the biological sciences deal regularly with restraint on publication due to restrictions imposed by propriety business interests. These do not seem to have brought the biomedical and biological sciences to a grinding halt. Why are restrictions imposed by business acceptable to the academic community whereas restrictions proposed for security reasons are not?
A2. There are facilities within the national labs that conduct classified research in the life sciences. There are affiliations with universities that permit academic scientists to conduct classified research within these secure facilities.
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The Department of Homeland Security will likely conduct some classified research at the national labs that will contribute to biodefense research. The DHS also is charged with working with HHS to develop a strategic plan for biodefense research.
It is difficult to distinguish an offensive bioweapons research program from a biodefense program as so much of the research can be viewed as dual nature. Research done in a classified environment raises concern that it could cross the line into banned bioweapons research; it limits the transparency needed to reassure the international community of the intent of the research and hence can initiate a biological arms race. Ken Alibek has reported that the former Soviet bioweapons programs were predicated on the assumption that the U.S. had similar classified bioweapons research in violation of the Biological and Toxins Weapons Convention. Nevertheless some classified research is necessary to protect against bioterrorism.
The business community retains some information as proprietary and maintains that information as secret. The government maintains some information as classified and maintains that information as secret. That information does not get submitted for publication and does not contribute to the mainstream of fundamental scientific advancement. Both industrial and government supported fundamental research in the life sciences are published and support the incremental growth of scientific advancement and biomedical discoveries. A good analogy is the elucidation of the human genome. After much debate between the public and private sectors, both agreed that open publication was appropriate for the advancement of discoveries that could fuel the economic advancements of the biotechnology industry and the public's medical well being.
Q3. Please answer the following questions related to the publication of sensitive information:
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Q3a. At what point in the process of conducting and publishing research is it too late to determine that the results are too sensitive to publish?
Q3b. Who should make that determination, the Federal Government of the journals?
Q3c. How does a journal avoid self-censorship?
A3. The ideal place to constrain scientific communication is at the inception of the work through classification, i.e., to follow the principles of NSDD 189. Some research conducted in an unclassified environment may produce results that are sensitive. Unfortunately there is no clear definition of such sensitive unclassified information and thus defining it in law is very problematic. Hence regulatory restrictions with possible criminal penalties would have a chilling impact on biomedical research and be harmful to biodefense efforts. Where specific information can be defined classification remains the appropriate mechanism for governmental constraint. When the information generated from fundamental research is unclassified it appropriately becomes a matter for ethical restraint by individual scientists and publishers. Similar restraint by individual scientists and societies is appropriate at an earlier stage of communication where scientific findings are presented at conferences. The ASM is developing a policy for the oversight of meetings presentations that will parallel the society's publication policy. This is proving more difficult as the only available information prior to the actual presentation may be an abstract which lacks sufficient detail to evaluate whether sensitive information will be presented. Generally the full details are not known until the actual presentation when it would be too late to constrain. Hence the difficulty in defining what should not be said in the abstract. In the end the ASM meetings and journals will walk very fine between responsible citizenship and self-censorship. The peer review system that is in place for both meetings and journals already makes judgments about scientific quality. Unlike works of art or literature, many scientific manuscripts are rejected and those that are accepted for publication are highly edited as part of the peer review process. The new review procedures simply place another layer of ethical safety into the peer review process aimed at ensuring that manuscripts do not inadvertently violate our commitment to work exclusively for the betterment of humankind.
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ANSWERS TO POST-HEARING QUESTIONS
Responses by Dr. M.R.C. Greenwood, Chancellor, University of California–Santa Cruz
Questions submitted by Chairman Sherwood Boehlert
Q1. How are other universities, elsewhere in the world, grappling with the issue of openness and security? What are the drawbacks of creating policies that only apply in the U.S.?
A1. I do not know of studies regarding how universities elsewhere in the world handle the issue of balancing openness and security. However, anecdotally, we have heard comments from researchers pointing out that an increase in restrictions governing research conducted at U.S. universities could make it more attractive to conduct research abroad, where there are, perhaps, fewer restrictions. One major drawback of creating restrictive policies that apply only in the U.S. is the risk that some of the best scientists and scholars—both from the U.S. and abroad—might choose to conduct their work elsewhere, depriving this country of their talents. Policies that encourage scholars to conduct their work in universities in Europe, Canada, and elsewhere would undermine our continued ability to lead in cutting edge research that has contributed to the economic vitality and prosperity of our nation.
To continue our lead in the global science and technology research enterprise, we must be able to attract the best and brightest minds from around the globe. Attracting talented foreign scholars may be of particular importance in a time when data suggest that Ph.D. production in Europe and Asia is on the rise (see NSF's 2002 ''Science and Engineering Indicators''). The best foreign students who, historically, in the last 50 years, would choose to come to the U.S., may make different choices if they find more attractive, perhaps less restrictive options overseas. This is especially true if visa requirements become overly burdensome or there is an increase in restrictions on participation of foreign scholars in research. Foreign students and scholars are critical to the continued success and vitality of American leadership in research. Recent reports highlight the importance of foreign scholars, particularly in science and engineering. Although there has been a renewed effort to increase the number of U.S. students pursuing science and engineering, foreign students and scholars continue to be important to our country's ability to maintain leadership in these fields.
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Q2. There are anecdotal reports of foreign students, including students who had previously studied in the U.S., having difficulty obtaining student visas. Is this true at your institution, and, if so, what is the impact?
A2. Yes, a number of University of California students, as well as visiting scholars, researchers and foreign-born professors returning to the U.S., have experienced difficulties in obtaining or renewing their visas. We have not done a systematic study of the extent of the problem and its impact. However, from anecdotal accounts, we know that visa delays and denials can have a serious impact on individuals and academic departments, and on teaching and research at the University.
The University of California shares the concern of the higher education community that difficulties obtaining visas will negatively impact the ability to meet our education and research missions. To reduce the impacts of visa difficulties, the University supports the goal of a secure, timely, efficient, and transparent visa process that allows for scholarly and scientific exchange. While we respect the need to review visa applications and to conduct security checks, significant delays or denials based upon incorrect information do have both direct and indirect effects.
Visa difficulties experienced by University students and scholars can result in costly delays to research projects, student deferrals in enrollment, and canceled classes. Indirectly, difficulties in obtaining visas may in the long-term limit contributions from foreign scholars visiting the United States to participate in academic conferences and lectures. This could have a negative impact on American scholars by limiting their interaction with scholars from other countries.
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The University of California is currently working with associations in the higher education community to address concerns related to obtaining and renewing visas. The Association of American Universities recently asked its member institutions to provide information related to visa problems. The Committee may wish to contact AAU for information about visa problems being experienced throughout the higher education community. A few examples of difficulties obtaining and renewing visas at the University of California include:
A UC–San Francisco researcher from Morocco traveled to Casablanca and applied for a H–1B visa revalidation, a visa he held for five years. His visa renewal (which he was told should be routine) was delayed by more than three months. In his absence his OB/Gyn lab slowed the progress of its research in reproductive hormones, resulting in unnecessary costs for an NIH-funded project.
A highly regarded student was admitted to a doctoral program at the UC–San Francisco's School of Pharmacy for the fall quarter 2002. Upon finishing his undergraduate program, he returned home to Malaysia for the summer and applied for a revalidation of his F–1 visa in Kuala Lumpur. By the end of September, he had not received his F–1 visa, and was forced to defer his enrollment for a year to the fall of 2003. The student's late withdrawal from the program meant that a spot went unfilled in this highly sought after program.
A professor from UC–Berkeley campus was denied a visa to return to the United State from Turkey because he shares a name with someone with a criminal record. This delay caused him to miss more than three weeks teaching an advanced mathematics class at the beginning of the 2003 winter session, negatively affecting his students.
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A UC–Santa Barbara faculty member with a J visa was unable to return to campus in September after going home to China for the summer. While his application was delayed, his department had to arrange for someone to temporarily teach this professor's class. The department had to determine another role for the J faculty member to fulfill while he remained in China on the UCSB payroll.
Researchers and students have experienced delays for security checks in Sweden, Germany, and Russia. Also, several Chinese researchers have experienced repeated denials of initial applications for J–1 visas—with only perfunctory review of their applications. These delays and denials have been extremely costly to NIH-funded basic science and medical research.
Q3. The hearing focused on how to set policies and practices that balance open scientific communication and national security. How will you know that a policy is not in balance? Short of a major national security breach, or academic breakdown, what indicator would signal that a given policy is out of balance, and either too restrictive or too open?
A3. In the hearing, I noted that open communication between scientists, science policy decision-makers, and legislators is necessary to work through these issues. Other witnesses also made this point. This is often a negotiated process, involving discussions and dialogue. Federal grant-making agencies must clarify why research restrictions may be needed in any particular case so as to ensure against inconsistent and arbitrary decisions. The agencies should be open to negotiation with the scientists and research institutions.
Regarding how to measure when a policy is out of balance, there is no ready formula to determine that now. Hypothetically, if a governmental policy prevented a university researcher from publishing his or her basic research results in a peer reviewed journal, that policy could be considered too restrictive. On the other hand, while we have a strong interest in maintaining an open research environment, we do not want researchers to promote their applied findings to the detriment of national security. Voluntary agreements within the scientific community can be a powerful tool to achieve the needed balance. For example, a number of prestigious journals and scientists recently issued a statement acknowledging the need to consider security issues that may be raised in scientific papers, and recognizing the role of journals and scientific societies in encouraging investigators to communicate research results in ways that maximize public benefits and minimize risks of misuse. The issues must be considered on a case-by-case basis when there is genuine risk of a security threat. As the National Academies and the Center for Strategic and International Studies (CSIS) have decided, these are issues that are ripe for open and candid discussion with and among the interested parties. NAS and CSIS are sponsoring continued discussions on the need to balance security with scientific openness. I look forward to learning about the progress of those discussions—and being a part of them, if possible.
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Questions submitted by Ranking Minority Member Ralph M. Hall
Q1. All of the witnesses referred repeatedly to the value of communication between the science and security communities to deal with the questions raised by this hearing.
Q1a. Are there examples in the Federal Government of effective organizations and methods for conducting such a dialogue?
A1a. Just within the Federal Government, a candid conversation between high-level officials with the national science agencies (Department of Defense, National Science Foundation, Department of Energy, Health and Human Services—National Institutes of Health, National Institute for Standards and Technology, National Oceanic and Atmospheric Administration, Department of Homeland Security), called by the White House Office of Science and Technology Policy (OSTP) and involving the President's Council of Advisors on Science and Technology (PCAST) as well as the national security agencies could result in meaningful communication.
Reaching to the broader science and security communities, I mentioned above in answer to Chairman Boehlert's third question, that the National Academies together with CSIS are facilitating valuable communication by organizing discussions about the need to balance security and openness in science research.
Q1b. How would you structure such a communication?
A1b. The communication has to be called at a very high level and chaired at a very high level—no less than Jack Marburger for the Administration; someone like Bruce Alberts at the NAS.
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Q1c. Should this be established statutorily or informally?
A1c. In my view, informally is a better option, as long as key people in the Administration and in Congress will agree to come. Funding would be needed to enable professional staff to work on this and convene the right kind of dialogues.
Q1d. If we rely on informal structures, how do we ensure they remain viable over time?
A1d. Perhaps the outcome of rigorous discussion in an informal structure could inform the development of a formal structure.
Q2. The Federal Government has found it valuable to conduct certain classified research in physical sciences at distinct facilities at some universities, for example, Lincoln Laboratory at MIT.
Q2a. Would there be equivalent value in establishing similar facilities for life sciences research at appropriate universities? Do they exist already? What are the barriers to creation?
A2a. First, a clarification about Lincoln Laboratory: Lincoln is a U.S. Department of Defense Air Force Laboratory that is managed by MIT. It is not an MIT laboratory on the MIT campus. It is also not a lab only for physical science research. It is a laboratory in which unclassified research and some classified research is conducted, including some classified physical science research. Los Alamos National Laboratory (LANL) and Lawrence Livermore National Laboratory (LLNL) also are federal labs. These are U.S. Department of Energy Labs that the University of California manages and in which classified and unclassified research is conducted. This research includes work in the life sciences. For example, researchers and scientists currently are conducting classified and unclassified work at LANL and LLNL on counters to bioterrorism.
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So, yes—federal facilities do already exist where classified (and unclassified) research in the life sciences is taking place. When deliberating over establishing such federal laboratories, questions to consider must include, ''What kind of research do we want to promote in these labs? Research that would flourish in an open environment or research conducted for national security purposes?'' Depending on the answer, and depending on the capacity we have at the existing federal labs, there may be value in exploring options for establishing such additional facilities.
Q2b. Will the creation of the DHS contribute to the conduct of bioterrorism research?
A2b. We welcome new resources being dedicated to support bioterrorism-related research. We believe that DHS can contribute to the conduct of such research if it ensures that the process for determining which projects are funded and for determining the siting of any new research facilities is based on good science, with the goal of funding high-quality basic as well as applied research.
Q3. The science community argues strongly that restrictions on communication inhibit progress. Yet, the biological sciences deal regularly with restraint on publication due to restrictions imposed by proprietary business interests. These do not see to have brought the biomedical and biological sciences to a grinding halt. Why are restrictions imposed by business acceptable to the academic community whereas restrictions proposed for security reasons are not?
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A3. Freedom to publish is a central tenet of academic freedom. Restrictions on the ability to publish and disseminate the results of fundamental research are of significant concern to universities, regardless of whether they are proposed by business/industry sponsors or by government agencies. As a general rule, universities will not agree to restrictions on the publication of the results of unclassified research. At the University of California, it is longstanding policy that freedom to publish is a major criterion in determining the appropriateness of a research contract; normally, any contract that limits the freedom to publish is unacceptable. It is true that universities may agree to protect the confidentiality of non-public proprietary information provided to them by a sponsor. At UC, we may accept contracts that allow a sponsor to seek a short publication delay in order to allow them to comment on and review publications for disclosure of their proprietary data or for potentially patentable inventions; such delays normally are granted for no longer than 60 or 90 days. This is not the same thing as accepting a restriction on the publication of research results, and does not give the sponsor the authority to deny permission to disseminate information resulting from work done under the sponsored project.
ANSWERS TO POST-HEARING QUESTIONS
Responses by Sheila E. Widnall, Institute Professor, Massachusetts Institute of Technology
Questions submitted by Chairman Sherwood Boehlert
Q1. How are other universities, elsewhere in the world, grappling with the issue of openness and security? What are the drawbacks of creating policies that only apply in the U.S.?
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A1. Science is an international enterprise. Many countries recognize that science and engineering are a major part of the economic engine that drives the strength of a nation and contributes to national security. Few countries have cultivated a healthy and productive scientific enterprise as effectively as the U.S. A good part of that greater effectiveness is our strong commitment to openness that fuels our productivity and helps to attract leading scientists and promising students to our shores.
None-the-less, others can observe what we do, and can capitalize on any restrictions we place on our research enterprise.
The recent NAFA report, January 2003, http://www.nafsa.org/content/PublicPolicy/stf/inamericasinterest.htm, documents that the U.S. is losing market share in the attractiveness of the U.S. to international students-and this data was for the years 1982–1995 when the U.S. share dropped from 40 percent to 30 percent. (40 percent was probably unsustainable.) What is perhaps more alarming is that this may be due to aggressive marketing campaigns on the part of the UK, Canada, Australia, New Zealand and others who have made the connection between attracting international talent and the resulting economic benefits. The significance of this is not only the loss of an opportunity to influence those likely to be future leaders in their countries, but also the loss of scientific and engineering talent needed by industries and universities in the U.S. for research and development.
At a recent workshop on Science and Secrecy at the National Academies, the President of NAS, Bruce Alberts, reported that he was aware of no other country that was considering placing restrictions on scientific research and publications.
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Q2. There are anecdotal reports of foreign students, including students who had previously studied in the U.S., having difficulty obtaining student visas. Is this true at your institution, and, if so, what is the impact?
A2. It is true that some of our registered students who have left the country have had difficulty returning with delays of several months. If the length of their delay is significant it will have a negative impact on their ability to carry out their coursework, thesis research, qualifying exams and thesis defense. If such delays become routine, they cause international students and scholars to be unable to attend international conferences, interview for positions in their home countries and participate in international collaborations. The outside view is that these restrictions make it undesirable to be an international student in the U.S. and they impact international conferences. There is anecdotal information about conferences relocating to avoid immigration and export-control issues that they would have if held in the U.S., making it harder for U.S. students and researchers to attend and reducing the flow of scientific information to us from abroad.
Q3. The hearing focused on how to set policies and practices that balance open scientific communication and national security. How will you know that a policy is not in balance? Short of a major national security breach, or academic breakdown, what indicators would signal that a given policy is out of balance, and either too restrictive or too open?
A3. I am concerned that the time scales for measuring the loss of capability in our science and engineering infrastructure are measured in decades. I cannot easily identify a ''miner's canary'' that would give us an early warning. Rather, there would be a gradual erosion of scientific leadership and innovation, which, by the time it was clearly measurable, would be very hard to reverse. That is why I believe the scientific community is speaking out so strongly and I hope clearly about the conditions necessary to sustain the ''free market-place of ideas'' that is the scientific enterprise.
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Any policy that requires scientists to submit manuscripts containing findings from basic research for a review of uncertain length and uncertain outcome by a security officer prior to publication will have a chilling effect on education and research. It could also have the effect of discouraging American students from pursuing what they perceive to be an uncertain career in science.
I do believe we should continue the dialogue and establish the working relations between the scientific and security communities that will allow us to track the situation in real time. We need to create an adaptive system rather than set conditions now for what is at best an uncertain future.
I believe that any policy that interferes with students' abilities to attend classes, pursue research, participate in conferences, publish their work will be too restrictive. The moment we must note or control the audience in a lecture hall we will be too far down the path of restrictions.
Q4. Describe the application of Bayh-Dole to patents filed as a result of classified research undertaken at universities.
A4. The Bayh-Dole statute sets forth the ownership rights for recipients receiving the standard Federal Government patent rights in their grants or contracts. U.S. Government grantees and contractors eligible to receive the standard Bayh-Dole rights are non-profits, small businesses and for the most part effective in 1984 large businesses. Under Bayh-Dole, if a recipient of federal funds elects title to an invention funded in whole or in part with federal funds, it must notify the Government that it wishes to take title. By asserting title the recipient must then file a patent application and is further obligated to certain due diligence steps to license the invention.
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Once a patent application is filed, regardless of who owns the patent or where or how the invention was developed or funded, the Commissioner of Patents (if the Government does not have a property interest in the patent application) or the head of the interested Government Agency (when the Government has a property interest, e.g., Government interests because of Bayh-Dole) can determine that the application contains information detrimental to the national security. If an invention is determined to contain such information the invention is kept secret and the publication of an application or the grant of a patent is withheld for a period of more than one year. The Commissioner of Patents can renew the secrecy order at the end of this time if there remains any national security interests.
At any time an agency can determine that an institution's unclassified research is detrimental to the national security and classify the research. An agency can also determine at any time during an unclassified research program that the sole use of the invention is for military purposes. If such a determination is made the Government agency asks for the invention to be assigned to the Government. Several years ago the Air Force determined that one of the Lincoln Laboratory's inventions was limited to sole military purposes and MIT assigned its ownership rights that accrued under Bayh-Dole to the Federal Government.
Questions submitted by Ranking Minority Member Ralph M. Hall
Q1. All of the witnesses referred repeatedly to the value of communication between the science and security communities to deal with the questions raised by this hearing.
Q1a. Are there examples in the Federal Government of effective organizations and methods for conducting such a dialogue?
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A1a. The National Academies have played a key role as a convener of the scientific community with the security community. Several recent workshops have contributed valuable ideas to the ongoing dialogue. Several Academy committees have focused on how the scientific and engineering communities can contribute to the security of the Nation without placing at risk the very strengths that brought us the research and education communities we have today.
There are several examples of important scientific advisory committees to federal agencies. Often working at the classified level, they are in a position to concentrate on the issues important to a given agency and focus their advice on the resolution of these issues. At the present time, these committees focus primarily on engineering and the physical sciences. Finding an effective way to involve members of the life science and the biological community in such activities should be a high priority.
Q1b. How would you structure such communication?
Q1c. Should this be established statutorily or informally?
A1b,1c. I believe we must have formal structures, specific advisory committees to federal agencies, and specific studies by the Academy.
Q1d. If we rely on informal structures, how do we ensure they remain viable over time?
A1d. A combination of formal and informal can be used. Some individuals may wish to be involved informally, as workshop participants for example. But I believe the structure that supports their involvement should be formal and specific.
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Q2. The Federal Government has found it valuable to conduct certain classified research in physical sciences at distinct facilities at some universities, for instance Lincoln Laboratory at the Massachusetts Institute of Technology.
Q2a. Would there be equivalent value in establishing similar facilities for life sciences research at appropriate universities? Do they exist already? What are the barriers to creation?
A2a. The boundary between the life sciences and the physical science is quite active. For example, there is life science work being carried out at Lincoln. The NIH RFP on Bioterrorism research is generating some interest and I imagine there will be a number of such facilities. The largest barrier is the difficulty faculty will have working at these sites if they cannot take their whole research group with them and work in an open environment. I presume that these facilities will be mostly staffed with postdoctoral associates and research staff.
Q2b. Will the creation of the Department of Homeland Security contribute to the conduct of bioterrorism research?
A2b. It is too early to say. At the present time it is important that the scientific community be involved in an advisory structure to help this new agency shape their research program and advise on other aspects of their mission of protecting the homeland.
Q3. The science community argues strongly that restrictions on communication inhibit progress. Yet, the biological sciences deal regularly with restraint on publication due to restrictions imposed by proprietary business interests. These do not seem to have brought the biomedical and biological sciences to a grinding halt. Why are restrictions imposed by business acceptable to the academic community whereas restrictions proposed for security reasons are not?
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A3. There are many differences between the contractual relationships between MIT and companies and many of the provisions being discussed by various federal agencies. To list a few: for industry-sponsored research the contractual relations spell out up front the relationships; publication delays of limited duration are agreed to for two purposes: to identify possible patentable results, and to avoid the inadvertent disclosure of proprietary information. The time period is specified by MIT, not the companies, and agreements in these two quite specific and usually well-defined areas are generally easily reached. We cannot allow embargoes or publication restrictions that will impede student thesis publication and presentation.
The restrictions being considered by various federal agencies have not been clearly spelled out. But it is clear, that both the time delays and the outcome would be controlled by the government, in many cases without the criteria being clear. One might anticipate restrictions arising after the fact, which could have a severe impact on the career of a student. This is the reason that our MIT committee recommended that we consider withdrawing from performing research in areas that have such restrictions applied by federal agencies.
Appendix 2:
Additional Material for the Record
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(Footnote 2 return)
Science and Security in the 21st Century, Commission on Science and Security, John Hamre, Chair, April 2002.