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