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5
IMPROVING THE CURRENT SYSTEM

In the previous chapter, the Panel defined a path concerning the control of university research that reflects our balancing of the competing national goals. In its assessment of the effectiveness and the costs of particular current and proposed controls, the Panel encountered several other areas in which adjustments can bring benefits and costs into better balance. This chapter presents specific ideas for improving the current system of controls.

The current system is undergoing rapid change. A few years ago the technology leakage problem was still largely defined in terms of hardware that could be copied or “reverse engineered,” detailed blueprints, and so forth. Because the perceived nature of the technology leakage problem has shifted only recently, governmental control mechanisms themselves are still being adjusted. In a fundamental sense, the government is still in the early stages of a learning process as it reorients existing laws, policies, and programs—designed for other purposes—to achieve a new objective, the dimensions of which are still not fully limned. What makes this adjustment particularly difficult is that the current effort to understand and control unwanted technology transfer is, unavoidably, fractionated within the federal establishment. Four agencies, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency, share the job of gathering intelligence on the nature, extent, and significance of unwanted transfers. Major regulatory authority is split among three separate offices (the Department of Commerce’s EAR administrators, the Department of State’s ITAR administrators, and State’s visa-processing office). These offices depend heavily on outside units in the defense and intelligence communities for expertise as they reach their judgments. Similarly diffuse is the government’s authority for classifying information and monitoring research and development results that it funds. Regulatory enforcement shows a similar diversity and includes yet another agency, the Department of the Treasury’s Customs Service. The Panel discovered, not surprisingly, that few people either inside or outside the government have a comprehensive understanding of the government’s technology transfer control effort. Individual components are understood, but their relations to one another—and, significantly, their implications for



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Scientific Communication and National Security 5 IMPROVING THE CURRENT SYSTEM In the previous chapter, the Panel defined a path concerning the control of university research that reflects our balancing of the competing national goals. In its assessment of the effectiveness and the costs of particular current and proposed controls, the Panel encountered several other areas in which adjustments can bring benefits and costs into better balance. This chapter presents specific ideas for improving the current system of controls. The current system is undergoing rapid change. A few years ago the technology leakage problem was still largely defined in terms of hardware that could be copied or “reverse engineered,” detailed blueprints, and so forth. Because the perceived nature of the technology leakage problem has shifted only recently, governmental control mechanisms themselves are still being adjusted. In a fundamental sense, the government is still in the early stages of a learning process as it reorients existing laws, policies, and programs—designed for other purposes—to achieve a new objective, the dimensions of which are still not fully limned. What makes this adjustment particularly difficult is that the current effort to understand and control unwanted technology transfer is, unavoidably, fractionated within the federal establishment. Four agencies, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, and the National Security Agency, share the job of gathering intelligence on the nature, extent, and significance of unwanted transfers. Major regulatory authority is split among three separate offices (the Department of Commerce’s EAR administrators, the Department of State’s ITAR administrators, and State’s visa-processing office). These offices depend heavily on outside units in the defense and intelligence communities for expertise as they reach their judgments. Similarly diffuse is the government’s authority for classifying information and monitoring research and development results that it funds. Regulatory enforcement shows a similar diversity and includes yet another agency, the Department of the Treasury’s Customs Service. The Panel discovered, not surprisingly, that few people either inside or outside the government have a comprehensive understanding of the government’s technology transfer control effort. Individual components are understood, but their relations to one another—and, significantly, their implications for

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Scientific Communication and National Security scientific productivity as these programs shift to address the scientific basis of technologies—are only now beginning to emerge. In general, the Panel concludes that there is much room for improvement in intelligently targeting the government’s efforts to prevent unwanted technology transfer; priorities must be set and communicated in order to limit the adverse effects of controls on other vital national interests, including that of maintaining a position of world leadership in science. More specifically, there are several areas in which improvement is needed: making controls more workable, improving the factual basis for decisions, improving mutual understanding between the government and the scientific community, and bringing better balance to U.S.-U.S.S.R. exchange programs. THE WORKABILITY OF THE CURRENT SYSTEM CAN BE IMPROVED At this stage, the government’s technology transfer controls have a very wide compass. There is a risk that by covering such broad expanses of technology and by implicating the scientific activities across the same range, the overall efficiency of the effort will suffer. Two principles can be applied to bring a more coherent focus to the problem. First, the government should concentrate on the most feasible forms of control and should eschew regulations that impose compliance burdens without significantly affecting leakage. Second, it should concentrate its resources more systematically on those technologies that are of greatest relevance to near-term Soviet military strength. Export Controls and Domestically Available Information American scientists have broad, constitutionally based rights to disseminate information within the United States free from government control, unless the information is classified or they have agreed in advance to contractual provisions limiting disclosure. And, as a practical matter, information that is available domestically is also available abroad. For example, there is no practical way to prevent domestic publications from circulating internationally. Both ITAR and EAR recognize this fact to a limited extent by providing exemptions from the formal licensing process for certain types of generally available information, such as published data.1 But information is available through many channels—lectures, seminars, conferences, 1   The Atomic Energy Act provides a unique statutory basis for controlling information bearing on nuclear weapons.

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Scientific Communication and National Security lecture notes, and the like. In recognition of the impossibility of impeding the flow of such domestically available information, control systems should be focused elsewhere. The Panel recognizes the existence of the hypothetical danger that when research is not done under a government contract prohibiting disclosure, a broad exemption might facilitate dissemination of work of national security concern. In practice, however, other safeguards already minimize this risk. First, research supported by industry often has proprietary value, and researchers are unlikely to release it to competitors, international or domestic. Second, most research of near-term military relevance is done under government contract, already giving the government an opportunity to classify or reach direct agreement about restrictions on dissemination. Third, the Panel believes that researchers, if aware of the government’s bona fide national security concerns, would be responsive. Thus, in light of the safeguards and the impracticality of control, a broad exemption is appropriate. The Panel recommends that unclassified information that is available domestically should receive a general license (exemption) from the formal licensing process. Priorities Within the Export Control System It is the Panel’s judgment that the national welfare is best served by allowing the free flow of all scientific and technical information that is not directly and significantly connected with technology critical to national security. Any diffusion of effort to control such information brings difficulties for administrators of the export control system because they must spread their resources across many technical areas. It also raises researchers’ fears of potential vulnerability to government enforcement actions in fields that are far removed from national security concerns. The Panel recommends that information that is not directly and significantly connected with technology critical to the national security should also receive a general license (exemption) from the formal licensing process. The critical technology list approach—if carefully formulated—could serve to define those limited areas where controls are appropriate. Militarily Critical Technologies List The Militarily Critical Technologies List (MCTL) was originally seen as a way to help shift the emphasis in export controls away from products toward the control of know-how, as had been recommended by the Bucy report in 1976. There is a real danger that the pending MCTL, if applied to scientific communications, will serve to make the export control effort more diffuse rather than to help the government focus on

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Scientific Communication and National Security the most critical areas of concern. The current version is stretched too broadly among a long (700 pages) and expansive array of technologies, all defined as militarily critical. This hampers any agency efforts to use the list as an effective the basis for licensing, monitoring, or enforcement. The Panel is concerned about the tendency to expand the MCTL, exacerbating the problems of understanding and applying it. For example, among the critical technologies listed in the most recent draft of the MCTL are techniques for volume production of microwave tubes, techniques for fabrication of multigap solar cells, and rare earth magnet materials such as samarium cobalt. Although such techniques and materials are essential in some military applications, they are also commonly employed in ordinary commercial processes in several parts of the world. If such a list were applied literally, it would appear that much basic research would be subject to export controls. As the MCTL now stands, and as the Panel understands the current revision, it is too unwieldy to be useful in guiding government controls of scientific and technical communication. The Panel recommends a drastic streamlining of the MCTL by reducing its overall size to concentrate on technologies that are truly critical to national security. The Panel recommends that items should be removed from the MCTL if they are in one or more of the following categories: science and technology whose transfer would not lead to a significant near-term improvement in Soviet defense capability; science underlying a mature technology—that is, a technology that is evolving slowly; science underlying dual-use technology that is not process-oriented; components used in militarily sensitive devices that in themselves are not sensitive. The Panel recognizes that technology transfer controls may be adopted for reasons other than direct military applicability, e.g., to support foreign or economic policies. When such controls are established, they should use mechanisms other than the MCTL. Voluntary Controls Voluntary measures tend both to involve fewer costs than measures founded on regulations and formal sanctions for noncompliance, and to avoid the adversarial atmosphere that accompanies much govern-

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Scientific Communication and National Security merit regulation. The trial voluntary prepublication review arrangement now in place between the National Security Agency and cryptography researchers is an example—one that some officials see as a possible model for other scientific fields. Three important characteristics, however, distinguish cryptography from most other fields. First, unlike some other dual-use areas, the military implications of new developments in cryptography are clear to researchers in that field, and thus the danger of open disclosure of particularly critical findings is fully appreciated in the scientific community. Second, the field is small and homogeneous, and the volume of papers produced is limited, so that the government can rely on nonbureaucratic means to interact with researchers. Third, and perhaps most significant, the National Security Agency has an unusually high degree of internal technical competence, which prevents governmental judgments that are needlessly conservative and insensitive to the needs of researchers. The Panel concludes that the voluntary publication control mechanism developed for cryptography is unlikely to be applicable to other research areas that bear on national security. However, the Panel recommends that consideration be given to adopting this mechanism in future cases if and where the appropriate preconditions exist. Staffing Deficiencies Another impediment to the development of workable control measures relates to the adequacy of staffing in government agencies. Budget restrictions have resulted in inadequate numbers of personnel in some cases; reduction-in-force rules may shift inexperienced personnel into positions for which they are not suitably trained; and agencies have had difficulty in attracting people who have the technical background to keep abreast of fast-moving developments in the many relevant scientific and technical fields in their area of responsibility. The shortage of staffing may be particularly significant, for example, in the processing of visa applications. There are similar difficulties in the intelligence effort that is directed at the leakage problem. The intelligence agencies do not have enough personnel who are able to judge the status of American technical capabilities in specified fields in comparison with those of Soviet bloc nations. Lacking such net assessments, decision makers are sometimes left with no reliable way to evaluate the meaning of a particular technological loss or the value of proposed exchange programs. When in doubt the safe way is to deny an application.

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Scientific Communication and National Security The Panel recommends that, despite the severe budgetary restraints now in effect, serious consideration should be given to increased staffing in situations where it can be demonstrated that an agency’s ability to implement, monitor, or enforce regulations, or to give adequate service, is being compromised by lack of a sufficient number of adequately trained people, as, for example, in the case of processing visa applications and developing intelligence assessments. THE FACTUAL BASIS FOR DECISIONS CAN BE IMPROVED As would be expected in the case of any newly perceived national policy concern, the dimensions of the current technology transfer problem are not yet fully understood. Nonetheless, decisions of two types are being made—in setting general priorities for the overall national effort and in applying specific controls. There are three particular areas where the factual basis for such decisions needs to be improved in order to avoid wasteful or inadequate policy actions. As has been seen, there is some concern among government officials that the American research community will become progressively more important as a potential source of leakage in the future. Efforts begun now may help keep U.S. leakage control programs in balance if and when such a shift occurs. Assessment Capability As the Panel has sought to gain perspective on the technology transfer problem (particularly with respect to the role of the research community), it has been unable to find adequate information on the nature or extent of the loss of technology. This is in part because federal agencies themselves have not kept adequate data or performed analyses on how frequently controls have been warranted. It is important, for example, to know the number and types of exchange visits that have been disallowed, of instances in which ITAR and EAR have been invoked for research results, and of instances where research projects have unexpectedly developed information that has been classified. The incompleteness of such data denies the government an opportunity to learn quickly about the nature and extent of the U.S. leakage problem, as well as the costs of its control efforts. Better empirical bases for decision making will help the government set program priorities and understand how the benefits to be expected of technology transfer controls are related to their private and governmental costs. The fact that federal efforts to control unwanted technology transfer are dispersed among many independent programs impedes the collection of more data needed. No agency now has a mission responsibility that encourages data collection on the costs of controls. There is also a need for the generation and central collection of information on the relative strength of the United States and the Soviet bloc in particular scientific fields. Without such assessments it is impossible to evaluate properly the costs and benefits of international scientific cooperation.

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Scientific Communication and National Security The absence of a coordinated program for conducting assessments precludes the orderly review and modification of the nation’s control efforts. The Panel recommends that the government establish a focal point of expertise in basic science and technology for the purpose of evaluating the costs and benefits of scientific openness with respect to existing or proposed restrictions. There is also a need to assess the standing of the United States in comparison with other nations in specific scientific areas. Decisions on visa policy, exchanges, and export restrictions should be based on advice from such assessments. The Office of Science and Technology Policy (OSTP) has the capability to organize this type of effort and is placed sufficiently high in the government science and technology policy hierarchy to make recommendations on such matters. Technology Transfers to the Third World The Panel’s analysis of the effects of technology transfer on national security has focused on the U.S.-Soviet relationship. This emphasis is in accord with the government’s concentration on leakage to the Eastern bloc. The Panel recognizes, however, that similar concerns may develop in U.S. relations with other countries as well. Although it is widely accepted that the participation of U.S. universities in the training of foreign students is desirable because it spreads technology and technical know-how that will improve the economic and social circumstances of less developed countries, some students are from foreign countries that are unfriendly or potentially unfriendly to the United States or its allies. Examples of such countries today include Iran and Libya, but it must be stressed that the list is difficult to compile objectively and is continually changing. A serious concern is that technology transferred to Third World countries will permit them to develop modern weapons sooner and at lower cost than would otherwise be the case. The most immediate worry in this regard is the proliferation of nuclear weapons. Improved Third World military capabilities—whether nuclear or nonnuclear—may not constitute an immediate threat to U.S. interests, but such developments have destabilized regional balances of power and led to local conflicts in the past, and are likely to do so in the future. The Panel therefore views the potential consequences of North-South technology transfer to be of great significance to future world stability and believes that this issue will continue to pose difficult policy and implementation questions, both for the federal government and for the research community. Although the Panel did not address the matter of selective treatment of particular Third World countries, it notes that both the current administration and the preceding one have embraced policies indicating less concern about the transfer of dual-use technology, particularly to the People’s Republic of China (PRC). The Chinese

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Scientific Communication and National Security military capacity to deploy advanced technology is much less than the Soviet capacity, and there is little danger that the PRC will act in concert with Soviet intelligence. In fact, in order to improve relations with the PRC, the government has encouraged attendance at U.S. universities by Chinese students, and there are now approximately 6,000 Chinese students studying here. Despite this government policy, in a number of instances officials in the State Department have asked universities to report on these students’ research activities (see Appendix J). The administration of export controls with respect to U.S.-PRC cooperative programs continues to be burdensome. Burdens on the government and on the research community would be greatly reduced if these procedures were further moderated in order to reflect the special status accorded the PRC in official U.S. policy. For the Third World in general, it may develop that the transfer of militarily significant technologies will prove to have national security implications for the United States that in the long run will match the dangers of leakage to the Soviet bloc. This potential problem is receiving too little attention. The Panel notes that its deliberations did not extend to the complex issues raised by military-related technology transfer from advanced industrial nations to Third World nations in regionally unstable areas or to those that may be potentially hostile to the United States and its allies. The Panel recommends that this subject receive further attention by the National Academy of Sciences or by other qualified study groups under federal sponsorship. Review of Scientific Exchange Proposals As noted above, the most effective potential channel of technology transfer from the research community is the transfer of know-how through long-term working relations and apprenticeships. International exchanges provide an opportunity for such transfers. Review of proposed exchanges of scientific personnel involving American universities is carried out by the Department of State in consultation with the U.S. intelligence community’s Committee on Exchanges (COMEX). There is a need to bring the research community’s insight and expertise to this process and to ensure that the research community appreciates the government’s reasons for concern about foreign abuse of scientific exchanges. The Panel recommends that the intelligence and university communities establish an ongoing effort to raise awareness in the scientific community regarding the problems and costs of technological loss, and in the intelligence community regarding the problems and costs of applying restrictions on academic campuses. The Panel recommends the establishment of an academic advisory group to COMEX that would facilitate more effective communication between the universities and the appropriate federal agencies regarding scientific exchanges.

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Scientific Communication and National Security BETTER MUTUAL ACCOMMODATION BETWEEN THE GOVERNMENT AND RESEARCHERS CAN AND MUST BE ACHIEVED We are still in a period in which the public debate on national security and scientific freedom is noteworthy for its high rhetoric and mutual mistrust. Some officials in the government have contributed to this atmosphere by showing impatience with the traditional openness of research; some people in the research community have as yet failed to acknowledge that the government has just cause for concern with some academic practices. Government-Science Relations Some of the disagreement within the United States over the need for more rigorous controls on scientific communication arises from insufficient mutual understanding about the motives, methods of operation, and concerns of the two communities involved. Many people within the U.S. scientific community, for example, have an inadequate understanding of the processes by which technology is transferred to the U.S.S.R. Moreover, many scientists and engineers are largely unaware, except in the most general terms, of the scope of the Soviet intelligence-gathering effort. By the same token, there is evidence that, with important exceptions, some key government officials lack sufficient appreciation of the dynamics that foster scientific progress. In some cases people in government have failed to assess accurately the types of administrative solutions that are feasible on most research campuses. Both university and industrial researchers have spoken out about the perceived vagueness of existing control mechanisms and the way controls have been implemented. Researchers find themselves suddenly informed that their research results may fall under ITAR and EAR. Because the MCTL is not available to those without secret clearance, many who are subject to ITAR/EAR controls lack crucial information about the specific technologies that are of national security concern to the government. The division of regulatory authority among many agencies and programs has compounded the confusion in the research community. The Panel recommends that the comprehensive forum proposed originally by the National Commission on Research2 be brought into existence as soon as practicable, under the auspices of the Academy complex. It further recommends that one of the specific standing responsibilities of the forum be discussion of science and technology 2   National Commission on Research. Accountability: Restoring the Quality of the Partnership. (Washington, D.C.: NRC, March 1980), p. 27.

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Scientific Communication and National Security transfer. The forum should promote exchanges of information and concern among (a) the affected line agencies, namely, the departments of State, Commerce, and Defense, (b) the affected agencies of the intelligence community, (c) the appropriate law enforcement agencies, and (d) representatives of the U.S. scientific community. In the view of the Panel, it is important that the forum meet on a regular basis and that it serve as the basis for the development of less formal and more direct channels of communication and cooperation. The National Academies’ Ad Hoc Committee on Government-University Relationships in Support of Science, which will soon conclude its work, is also expected to recommend that such a forum is needed. This forum is seen as a device that would facilitate improved communication among participants with widely varying goals on a range of key policy issues. It would be an instrument for the prevention of surprise decisions and would facilitate movement toward consensus. The existence of such a forum would not, of course, prevent researchers and/or agency officials from pursuing negotiations on their own, nor would it limit their exercise of the responsibilities of their offices. Its primary purpose would be to achieve mutual understanding of motives, goals, and problems. It would also provide a convenient avenue for the continuous examination and reexamination of issues. University Involvement in Research Whose Results Will Not Be Disseminated Universities have attempted to ensure that the results of university research are made available to the scientific community. The Panel has noted, however, a growing interest by some university faculty members and students in research to which access is restricted. Thus far universities seem to have found roles in such research that do not compromise their policies of unrestricted publication. However, universities should ensure that their participation in such research does not evolve in ways that would undermine their principal mission or risk the freedom from which universities derive their strength.3 The risk to universities is that the part of the university that 3   The Panel notes that potential restrictions on the dissemination of results are not limited to military research. Many academic fields are of interest to commercial firms who seek to protect a competitive advantage by withholding proprietary information about technology. Many such firms support university research. Current university policies may permit a short delay in the open publication of such research results in order to conduct patent reviews, but generally do not otherwise allow restrictions on access or communication. However, if more severe proprietary restrictions evolve, it must be recognized that they could have the same adverse effects as the national security restrictions discussed in this report.

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Scientific Communication and National Security accepts a role in developing information that cannot be disseminated is, in some respects, no longer an integral part of the university; a figurative wall is erected to keep out those who might use the information for other than its intended purpose. It is in the national interest to prevent universities from transforming themselves into government or commercial research laboratories. There are other organizations that exist for the express purpose of undertaking classified and proprietary commercial research. The Panel recommends that universities should be vigilant when considering whether to accept research programs that may develop information that is not to be made available to the public, lest they compromise the freedom from which they derive their strength. U.S.-U.S.S.R. SCIENTIFIC EXCHANGE PROGRAMS SHOULD BE BROUGHT INTO BETTER BALANCE Scientific exchanges with the Soviet Union can enrich U.S. scientific efforts and help maintain a continuing and reliable assessment of Soviet capabilities and growth. Exchange visits also have significant cultural and intelligence benefits. There is very little evidence that scientific exchange programs have had an identifiable adverse effect on U.S. national security. This does not imply that the flow of scientific information between the United States and the U.S.S.R. through exchange is balanced. It is not. Some substantial imbalance would be expected, even if there were no concerted Soviet effort to collect information in the United States, given the fact that, on the whole, U.S. science and technology are more advanced than are Soviet science and technology. Still, there is a significant and growing number of scientific fields in which the Soviets have invested heavily and have achieved world-level proficiency. It should be clearly understood, however, that there are also some significant risks associated with exchange programs. The Soviet Union utilizes exchange programs to collect sensitive information, sometimes with highly specific aims. Heightened sensitivity among U.S. scientists to this fact is desirable. The U.S. scientific community should recognize the potential for foreign misuse of exchange programs for intelligence purposes. If scientists in academia and elsewhere perceive activities that threaten national security, it is appropriate that they voluntarily inform government officials. While proposals for particular exchange visits are reviewed with respect to possible technology losses, the design and operation of the exchange programs themselves have been influenced far more by the foreign policy objective. There are ways to improve U.S.-U.S.S.R. exchange programs to better balance their scientific benefits with the risk of potential technology losses.

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Scientific Communication and National Security Bilateral Intergovernmental Agreements Following recent events in Poland, U.S. policy has been to steadily curtail scientific exchanges under U.S.-U.S.S.R. bilateral agreements, certain fields covered by the bilaterals—for example, plasma physics, condensed matter physics, and fundamental properties of matter—are areas of considerable Soviet strength and provide useful scientific contributions to American research, and can provide insight into Soviet activities. The government should weigh scientific as well as foreign policy factors in decisions about the bilateral agreements. The Panel urges the administration to become more selective about which programs it chooses to cancel, renew, or allow to expire. These decisions should be made on a substantive basis, and this suggests the need for increased involvement of the White House Office of Science and Technology Policy leading to a more comprehensive examination of the costs and benefits of the exchanges. Inter-Academy Exchanges (NAS-ASUSSR) The exchange program between the National Academy of Sciences and the Soviet Academy of Sciences (ASUSSR) has generally been successful. Partly because of the “sending-side-selects” scheme for designating participants, however, there is room for improvement through the participation of a higher proportion of outstanding scientists. Without such improvement, the risk of technology loss through abuses of the program might eventually equal the value of the exchanges to this nation. Movement in the direction of “receiving side selects” on both sides would improve the program. The Panel recommends that at least 50 percent of the visitors on both sides should be invited by the receiving side, with invitations based on publications and other measures of competence of the visitors. Agreements should contain a clause that would allow cancellation of the program if it is determined that the other side is not sending those agreed upon or abuses the exchange program for intelligence purposes. International Research and Exchange Board Program Most U.S. participants have found their International Research and Exchange Board (IREX) program visits to be satisfactory, and the program clearly advances U.S. graduate training in Soviet studies. A majority of the U.S. hosts have reported Soviet students’ scientific performance to be at least satisfactory. Nonetheless, the commonly perceived asymmetry and the possible abuse of the program for intelligence gathering purposes are noted. The Panel recommends that (a) some fixed portion of the IREX program be reserved for technical and scientific fields in which the

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Scientific Communication and National Security United States and the U.S.S.R. have rough parity; (b) review procedures on the receiving side be enhanced to ensure that only bona fide scholars are sent on the exchanges; (c) all militarily sensitive areas be excluded from the exchanges by formal agreement; and (d) new or expanded procedures be developed to ensure that the program is mutually beneficial.