Science and Security in a Post 9/11 World: A Report Based on Regional Discussions Between the Science and Security Communities (2007)

The tragedy of September 11, 2001, the subsequent anthrax attacks, and ongoing terror threats internationally have markedly changed national and international security. As concerns about threats and terrorist activities have become global, so have the rapid transfer of information and communication. The confluence of the globalization of business and the revolution in information storage and transmittal has changed the landscape upon which to build national and international security. This requires a re-examination of the security measures developed during the days of the Cold War to assess whether those tools are still appropriate and to determine how they are affecting the current science and technology enterprises.

During the regional meetings that were held as part of this effort, the committee heard presentations from a number of governmental officials concerning security threats confronting the United States. While these individuals were not always able to offer concrete examples of the reality of these threats, they clearly perceive vulnerabilities to which we should be sensitive. They discussed concerns that have several dimensions. First, the United States’ porous borders could allow terrorists to enter the country and attack U.S. citizens. Some of these terrorists might pose as (or in fact be) students in order to gain entry and find cover in a university community. Hence, it is argued that there is a need for programs to police the entry of students and to verify their activities. This situation differs from that of the Cold War because of the number of countries that are terrorist spawning grounds, and because, unlike during the Cold War, those who seek to penetrate U.S. borders under false pretenses are not spies, but rather terrorists on missions of destruction.

Second, there is concern that terrorists might use U.S. advanced technology against us. The presence of dangerous pathogens or other research materials that could be used as weapons pose a potential vulnerability at some universities. Moreover, there is concern that terrorists aspiring to apply advanced technology to the development of weapons might develop the technical capability to do so through a university education. This situation also differs from that of the Cold War because the Soviet Union was a sophisticated adversary, at least with respect to weapons technology, while the terrorist community is not. Hence, it is argued that

there is a need for special programs to screen foreign students from a range of countries who might be pursuing studies in “sensitive” fields.

Third, a more generalized concern is present about state actors and their access to advanced technologies of military significance. That is, because the U.S. military edge is built on the skillful application of advanced technology, there is concern that other countries might benefit militarily from access to scientific or technical information available in the university environment. This too differs from Cold War days, first, because of the diverse group of countries that might be judged to be potential adversaries; second, because research in some areas (e.g., biotechnology) is now far closer to application than it has been in the past; and third, because in some fields the civilian applications of technology available at universities may be ahead of military applications for that same technology.

Finally, concerns are present arising from the reality that America’s economic well-being is founded on the maintenance of its scientific and technological edge and that foreign countries could seek to penetrate U.S. universities (as well as U.S. businesses) for the purpose of obtaining early access to technology in order to supplant U.S. capabilities and reap the economic gains for themselves. This too differs somewhat from Cold War days because the world is increasingly “flat,” with individuals from most anywhere able to connect, collaborate, innovate, and compete. As a result, many countries now seek to exploit advanced technology as an engine of economic growth. Especially in the case of China, experts who spoke before the committee sometimes were vague regarding whether they were more concerned about traditional security-related espionage or more competitive economic espionage where high technology research data are concerned.

In the committee’s view, none of these concerns should be dismissed or disregarded. And indeed, the committee was aware that the university community has responded to concerns raised by the September 11^th terrorist events by strengthening current policies and implementing new policies stemming from recent federal regulations. The committee concluded, however, that these concerns do not justify the use of extreme measures that could serve to significantly disrupt the openness that has characterized the U.S. scientific and technology enterprises. The committee reached this conclusion because some policies that would aim to minimize the threats described earlier also could pose significant risks to the nation’s ability to remain economically and militarily secure.

The success of U.S. science and engineering has been built on a system of information sharing and open communication, not only among U.S. institutions, but also with the international science and technology communities. The global scientific enterprise thrives on the movement of students and scholars across borders and among institutions. For more than 50 years, U.S. research universities—the envy of the world—have welcomed and fostered the talents of both foreign-born and U.S. students in the service of national and economic security. Foreign-born scientists and engineers come to the United States, stay in large numbers, and make significant contributions to America’s ability to achieve and maintain technological and economic leadership. Given the current diminishing rates of new scientific and engineering talent in the United States—the subject of other reports and a topic of national concern—the size of the U.S. research and development effort cannot be sustained without a significant and steady infusion of foreign nationals. We must continue to encourage U.S.-born citizens to pursue science and engineering degrees and at the same time remain open to the benefits that foreign-born, but U.S.-trained, scientists and engineers bring to our country in terms of technological and economic growth.

With encouragement from the House Committee on Science and Technology and the White House Office of Science and Technology Policy (OSTP), the National Science Foundation and the National Institutes of Health requested that the National Research Council’s Committee on Science, Technology, and Law establish an ad hoc Committee on a New Government-University Partnership for Science and Security.

The committee was charged with organizing three regional meetings to:

1. bring together faculty and research administrators, government officials from research and national security agencies, and congressional members;

2. focus on:

   1. restrictive clauses in federal contracts and grants,

   2. the dissemination of scientific information,

   3. sensitive but unclassified information, and

   4. the management of biological agents in academic research; and

3. issue a report identifying the committee’s findings from the workshops and the committee’s recommendations.

Each regional workshop addressed all four topics, although with different emphases, depending on the research focus of a particular host institution/region.¹

The committee was composed of individuals with a wide array of experiences in academic and government service, including individuals who served or are currently serving in senior government or committee positions with the following organizations:

• Central Intelligence Agency

• Defense Science Board

• Department of Defense

• Department of Energy

• Department of State

• National Nuclear Security Administration

• National Science Advisory Board on Biosecurity

• National Security Agency

• National Security Council

• Nuclear Regulatory Commission

• Senate Armed Services Committee and Intelligence Oversight Committee

• U.S. Air Force

• U.S. Commission on National Security for the 21^st Century, and

• White House Office of Science and Technology Policy

The committee assiduously sought the advice of senior representatives of the security and intelligence communities, as well as the views of the

academic research community. This advice was at every point placed in balance with an understanding of the intricately linked connections between scientific knowledge, economic progress, and national security.

In its deliberations, the committee fully recognized the legitimate concerns of those tasked with securing U.S. borders. Interestingly, even with such a divergent range of committee expertise and speaker/participant input, an overwhelming consensus was apparent that to keep the country secure and to maintain our freedoms, we must strive to keep U.S. universities open—welcoming students and scholars from around the world and participating in international research—while limiting access when warranted and placing appropriate restrictions on narrow and well-defined high-risk areas.

In the view of the committee, U.S. leadership in science and technology—leadership that has been gained in part through the interchange of ideas within the international community—is central to achieving national security in the economic and defense context of the 21^st century. The political leadership of the United States must understand, and in turn must help all Americans understand, that as a nation the United States has no exclusive ownership of ideas or knowledge and that scientific discoveries and technological advances made in the United States often rely on knowledge created outside our borders. Although prudence requires close stewardship of the most harmful and dangerous products of human ingenuity, unnecessarily closing ourselves off from the world in a futile effort to protect ourselves will only isolate us from an increasingly integrated and competitive global community. The unknowable nature of when, where, and what the next threat will be requires that our country continue to rely on a broad-based talent pool as well as on fundamental, long-term research programs. The important advances that are made as a result of such long-term research are critical to maintaining our economic competitiveness and to meeting the challenges of future technological threats and human health concerns.

The task of achieving the appropriate balance between the need for rapid, open communication among scholars and the safeguarding of information that could be used to do us harm is a challenging one, and it is one that requires the continual and sustained attention of the scientific community. The committee believes that the nation can and must strike this balance so that our extraordinary creativity and productivity can continue to flourish and propel us into a prosperous future.

In this report, which reflects the key issues that were raised during the regional meetings, the committee discusses the background for the concerns that persist in these areas and makes recommendations for addressing them. It also calls on the university community and government to seek a new and enduring partnership dedicated to communication and an ongoing search for solutions. The committee’s efforts are by no means the first to try to shape a reasonable policy for moving forward in the complex worlds of science and security. In general, the findings and recommendations in this report build on and emphasize the importance of these prior efforts.

The following recommendations focus on the need for an enduring university-government partnership to provide a sustainable balance in science and security. The committee recognizes the critical role that industry plays in achieving this task but limited the report to the government-university interface.

Openness and communication are important foundations of modern science. They are particularly important for the United States because our extremely strong science and technology community has the capability to implement and exploit advances from around the world more rapidly and effectively than any other nation or group. It must be recognized, however, that sharing and publishing research results, while advancing the aggregate knowledge of researchers working in a given field of science, also can provide access to those who would use such information to harm others. However, policies aimed at limiting access by malicious parties also can constrain the efforts of those desiring to put such information to good use. Therefore, developing and implementing measures to control access to sensitive information must be considered within the context of overall costs to the research community and to the public that benefits from the results of such research, and with an eye toward the anticipated effectiveness of such measures to actually enhance security.

NSDD-189 was issued by President Ronald Reagan to set forth official national security policy for the guidance of the defense, intelligence, and foreign policy establishments of the U.S. government. In summary, it states that it is the policy of the U.S. government to not restrict, to the maximum extent possible, the products of unclassified fundamental research. Universities view this policy statement as critical to their ability to conduct basic and applied research at their institutions without the need for securing licenses from the Departments of Commerce or State, since the policy provides an exclusion for the conduct of such research.

Although there have been instances of the inclusion of publication and access restrictions in assistance awards (grants and cooperative agreements), the far greater problem for universities has been in the procurement (contracts) area. Contracting officers and universities sometimes do not recognize that the fundamental principles as well as much of the wording of NSDD-189 are incorporated into the Federal Acquisition Regulations (FAR 27.404(g)(2)). The problem for universities is that federal agencies sometimes impose restrictions on publications or foreign nationals in their research contracts to universities when the research complies with the requirements of NSDD-189. More difficult for universities is the fact that federal agencies award research contracts to industrial firms without the fundamental research exclusion (which is appropriate) but do not consider that the subrecipient who will help perform the work may be a university for which the restrictions are not appropriate. The industrial prime may be reluctant (or unable) to secure sponsor approval to remove the requirement from their subcontracts to universities.

Furthermore, in addition to recognizing that NSDD-189 is incorporated into the FAR, it is important that federal regulations such as the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) be made consistent with NSDD-189.

During the committee’s regional meetings, university officials reported that they had significant concerns about not only the increase in the types of research considered classified but also in the variability within and among agencies in classification policies and practices. In particular, however, concerns were expressed that increasing use of the “sensitive but unclassified,” or SBU, category erodes the exclusions spelled out in NSDD-189, since it limits the scientific community’s right to publish the results of basic research and restricts the participation of non-U.S. researchers. Other meeting participants expressed concern about the disparate use of the SBU

designation across agencies which potentially undermines the intent of NSDD-189.

A survey of 20 institutions in 2003-2004 conducted under the auspices of the Association of American Universities and the Council on Governmental Relations found 138 attempts by the government to restrict the publication of data or foreign-national participation in research. Anecdotal information presented at the regional meetings indicates that inappropriate restrictions are continuing to be included in research awards; however, it is not known whether the number and frequency of such restrictions are changing.

The federal government, in addition to using classification, also attempts to control the flow of information and materials through export control and arms trafficking regulations. Specifically, the Department of Commerce implements the EAR that bars the export of items, technology, and technological information found on the Commerce Control List to foreign countries without appropriate export licenses. The EAR covers the transfer of dual-use commercial goods. In addition, the Department of State implements the ITAR, which regulates the export of items, technology, and technological information maintained on the Munitions Control List. Both the EAR and the ITAR contain exclusions for fundamental research. Several meeting participants noted that many of the items on the Commerce Control List and the U.S. Munitions List are technologically outdated, broadly available, and not controlled in other countries. Commentators noted that if

the purpose of export controls is to protect a U.S. advantage, it makes no sense to restrict exports of technologies that are so broadly available in other countries.

In addition to these export controls, deemed exports is a term that is used to refer to the transfer of controlled information to a foreign national within the United States, such as a foreign scientist working in a university laboratory. Typically, universities rely on the fundamental research exclusion to exempt such research from export control, and universities have understood that fundamental research is excluded from deemed export regulations.

Recent efforts by the Departments of Commerce and Defense to revise these policies were met with concern by the research community, subsequently revised and, in the case of the Department of Commerce, were withdrawn. However, issues regarding their interpretation and implementation remain, and participants at the regional meetings expressed their belief that a serious effort is needed to evaluate and justify the items on the current Commerce Control List and U.S. Munitions List. Therefore, while the committee applauds the willingness of the Departments of Commerce and Defense to consider the concerns of the university community, additional work is needed to evaluate and justify the items on the lists. The committee noted that it is important that any such reviews of the export controlled technologies be conducted by the best available technical experts, and that these experts need not necessarily be government employees.

The education and training of new scientists and engineers is critical to ensuring that the next generation of innovators is prepared, supported, and encouraged to seek breakthroughs in knowledge for the betterment of society. Science thrives when there is a free exchange of information and when scientists and engineers (embodying that information) are able to cross borders to train, collaborate, and share knowledge. The high level of participation of foreign-born scientists and engineers in U.S. laboratories and classrooms warrants increased efforts to ensure that policies regarding their movement, attendance at scientific meetings, and collaborative activities are adequate and not self-defeating. In the months after the September 11^th attacks, the Department of State amended the Technology Alert List (TAL) used by consular officials during the interview process when determining the issuance of nonimmigrant visas. Participants at the regional meetings reported that initially there were some overly restrictive reviews of student visas and travel restrictions based on the TAL, but that the situation seems to be improving.

The National Science Advisory Board on Biosecurity (NSABB) was chartered by the Executive Office of the President “to provide advice, guidance and leadership regarding biosecurity oversight of dual-use research, defined as biological research with legitimate scientific purpose that may be misused to pose a biologic threat to public health and/or national security.” The NSABB is to be commended for its efforts to address life science and security issues. However, its role is advisory only, it does not have global authority, its requirements only apply to federally funded research, and it does not have a permanent mechanism to address these issues on an international scale. Moreover, unilateral regulations may disproportionately affect U.S. science, threatening our dominance in certain areas and hampering crucial collaborations with non-U.S. scientists.

Biosafety oversight of life sciences and biotechnology research in the United States has historically been based on self-governance on the part of researchers and on local risk-based oversight. Such oversight generally is delegated to local committees, and those committees should receive training in issues relevant to national security.

Perhaps one of the greatest challenges for the future will be in understanding threats and in redefining and understanding the meaning of security. The social sciences could help enhance our understanding of the conduct of science, the culture of laboratories, the technology transfer process, international collaborations in science, and the culture of openness and trust in science. With regard to security concerns, the social sciences could add to our understanding of the precise nature of “threats” to national and global security, the difference between Cold War approaches and strategies for asymmetric threats, and the nature of biological threats. Support for the social sciences also is needed because the lack of strategic analysis from the social sciences helped contribute to past intelligence failures, and human intelligence will continue to play an increasingly important role in our ability to understand our enemies and identify the next threat. Furthermore, methods and strategies for determining security risks and the benefits of preventive actions and establishing appropriate risk/benefit calculations need to be further developed, and mechanisms for accurately and appropriately communicating risks and threats to the scientific community and general public must be improved—all of which calls for the need to sufficiently support the fields of area studies, languages, risk analysis, and the social sciences more generally.

If the federal government were to subsidize these areas of study, students could fulfill their obligation through committed time spent in the foreign service, the public health service, or the intelligence community.

In the context of a constantly changing global economy—from which new threats to national and international security have emerged and will continue to do so—it is imperative to develop and maintain communication channels between the security and academic research communities in order to facilitate ongoing discussion and sharing of information. Discussions held at the regional meetings convened by the committee emphasized that a healthy alliance among research universities, industry, and government lies at the heart of the American innovation system and of the innovation economy. Moreover, such an alliance is essential to meeting national security goals.

The committee is reassured that recent communications between the security and academic communities have been productive and that government officials have been responsive and responsible. However, too often these communications and responses have occurred only in reaction to serious concerns that spread through the research community—concerns that could have been avoided were there more proactive communication in advance of policy decisions. In addition, although improvements have been made, many issues remain unresolved.

As a first step, the commission should undertake a review of the mechanisms now being used to control exports, including deemed exports. It should utilize the recommendations that will be made by the recently established Commerce Department Deemed Exports Advisory Committee. The commission also should review the fundamental assumptions underlying U.S. visa policies with respect to foreign students and scholars. Through this convening mechanism federal research agencies and the academic research community should aim to work more closely with the national intelligence and security communities to increase mutual understanding. In addition, because the United States must focus on both national and international security, the U.S. government should enter into discussions with the global community about coordinated counter-threat measures that do not impede international collaboration. The proposed commission should pursue the best avenues for initiating such discussions.

Furthermore, other partnerships are needed between the science and security communities because the intelligence/security and university communities have limited understanding of each other’s cultures. Many in the intelligence community do not understand the importance of foreign students and scholars, the extensive nature and benefits of international collaboration in science, and the need for open scientific communication. Many in the university community do not understand the concerns of the

intelligence community about academic research and communication or the responsibilities and limits that regulations such as export controls and select agents can place on researchers.

In implementing new security measures the United States must be cognizant that, in a context of increasing globalization and competition, policies that consider only a desire for protection through additional restrictions and controls could have adverse effects on economic growth, international competitiveness, and even long-term aspects of national security if they are not properly balanced with the need for open communication and collaboration on the part of scientists and engineers. In addition, although beyond its charge, the committee recognized that the unknowable nature of when, where, and what the next threat will be requires that the United States continue to rely on a broad-based talent pool as well as fundamental, long-term research programs. Important advances from long-term research are critical to meeting the challenge of future technological threats and human health concerns, and thus such research must receive substantial federal support.