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Class #2

Scientific Materials and Information: Openness, Security, and Controls

Policy Background and Post 9/11 Issues

C. M. Vest

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Federal R&D Budget: The Impact of 9/11

This budget totaled$0.6 billion in FY 01.

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Control of Dangerous Materials

• “Select Agents” Regulations

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Control of Scientific Information

• What legislation has said about universities and areas of study

• Contrasting nuclear weapons and biological weapons / bioterrorism

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Control by the Federal Government

• Security and classification– Developed through the nuclear and other

weapons programs– Based on “need to know”

• SECRET /TOP SECRET (Q) / SPECIAL COMPARTMENTED

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Control by the Federal Government

• Sensitive but Unclassified

• Export Controls– NSDD 189– “Deemed exports”

• Clauses conflicting with campus policies

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Science and Secrecy:The Origins of NSDD 189

The National Academies Science, Technology,

and Law Panel

March 18, 2005John C. Crowley

Vice President for Federal Relations

Massachusetts Institute of Technology

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My Assignment

• Trace the origins of National Security Decision Directive 189 (NSDD 189).

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Preface: Pre-911 Tensions Between Science and Security

• A long history.• Rooted deeply in the government-

university research enterprise.• In 1947, shortly after World War II, the

President’s Scientific Research Board report on Science and Public Policy addressed them as follows:

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“Strict military security in the narrow sense is not entirely consistent with the broader requirements of national security. To be secure as a Nation we must maintain a climate conducive to the full flowering of free inquiry. However important secrecy about military weapons may be, the fundamental discoveries of researchers must circulate freely to have full beneficial effect. Security regulations, therefore should be applied only when strictly necessary and then limited to specific instruments, machines or processes. They should not attempt to cover basic principles of fundamental knowledge.”

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August 1949: E. O. 9835 & The AAAS Special Committee on Civil Liberties for Scientists

• Executive Order No. 9835 -- The Loyalty Order - no person shall be employed in a federal post if he is believed to be disloyal to the government of the United States.

• The E.O. goal: “complete and unswerving loyalty to the United States” of all in its service.

• AAAS Committee urged a focus on behavior not beliefs.

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The AAAS Committee Quoted

Judge Cardozo“Experimentation there may be in many

things of deep concern, but not in setting boundaries to thought, for thought freely communicated is the indispensable condition of intelligent experimentation, the one test of its validity.”

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The AAAS Committee Also Quoted President Truman

“Continuous research by our best scientists is the key to American leadership and true national security. This work may be made impossible by the creation of an atmosphere in which no man feels safe against the public airing of unfounded rumors, gossip and vilification.”

August 19, 1949

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The 1950’s Brought The Cold War, And With It…

• The House UnAmerican Activities Committee

• The McCarthy era

• “Duck and Cover” drills in schools.

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Then, After Thirty Years Of…

• The Korean War

• The Space Race

• Viet Nam

Came….

The Fears of the 1980s

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Openness = Vulnerability to Soviet Threat

• The U.S. - Soviet relationship deteriorated to the levels of the Cold War of the 1950s.

• U. S. Fears:-- Loss of militarily significant technology and superiority;

- Loss of technological leadership and know-how;- Loss of industrial competitiveness.

• Universities were seen as targets of foreign intelligence gathering, as points of “leakage” and “hemorrhage” of technology, even as the Nation’s soft underbelly.

• Classified intelligence findings were invoked.

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The Times Led The National Academies To Suspend Bi-

Lateral Exchanges

In Response, Professors Weisskopf and Wilson wrote:“The only appropriate way for the scientific community to

deal with any kind of problem, scientific or human, is through reason and discussion…If we cannot learn how to rationalize our differences, how to resolve them by argument rather than by threats and by cutting off relations, then we are really lost.” Weisskopf and Wilson, Science, 5-30-1980

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Election of 1980: New Policy Leaders & DOD-University Forum

• April 3, 2001, HASC Hearing on DOD and the universities.

• Dr. Richard D. DeLauer, newly appointed Under Secretary, R&E, attended simply to listen.

• HASC Requested a new DSB Report: University Responsiveness to National Security Requirements.

• Dr. DeLauer also asked AAU for a report.• The AAU report was completed in November 1981; The

DSB report was released in January, 1982.• Each report recommended a mechanism for dialogue

between DOD and universities be established.

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DOD-University Forum• Co-chairs:

- Under Secretary DeLauer- Dr. Donald Kennedy, President, Stanford University

• Members:- 7 university presidents- 6 senior DOD officials and 3 DSB Members

- Staff: USDRE, AAU (on behalf of AAU, ACE, NASULGC)

• Dr. DeLauer established 3 working groups:

- Foreign languages and area studies

- Science and engineering education - Technology Export Controls, David A. Wilson, U. Ca. Co-chair

• The Forum Met in May, 1982; working groups in the Fall.• A 2-year FACA charter took effect on 12-15-83.

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“The Government, Secrecy, and University Research”

D. Kennedy, Science, 4-23-1982

• Promising signs of change.

• Apply visa controls.

• Classify the technology.

• Enable universities to decide in advance.

• New burdensome regulations will cost the nation more than it can be worth.

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Contemporary Incidents

• April, 1982, E.O. 12356, broadened authority to classify information; however, it included this:- “Basic scientific research information not clearly related to national security may not be classified.”- The meaning of this statement was widely debated.

• August, 1982, “Raid at San Diego”: The first 2 papers were withdrawn from 26th annual Society for Photo-Optical Instrumentation Engineers (SPIE) conference; in all, more than 100 papers were withdrawn at government request.

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Also in the Spring of 1982, The NAS and NRC Established The

Corson Panel

• Mandate:- Examine evidence of technology leakage and methods of controlling it;- Seek policy measures by which competing national goals of defense and intellectual freedom could be accommodated satisfactorily.

• Dr. Dale Corson chaired a distinguished group.• The Panel reviewed classified information.• They worked fast.

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Corson Panel Report: “Scientific Communication and National

Security”, 9-30-1982

• Primary Conclusions:– “Security by Secrecy” will weaken U.S. technological

capabilities.– There is no practical way to restrict international

scientific communication without also disrupting domestic scientific communication.

– Build “high walls around narrow areas” in pursuit of “security by accomplishment”.

– Identify and devise controls only for “Gray Areas”

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Gray Areas: Four CriteriaThe Panel recommends that no restriction of any kind limiting access or

communication should be applied to any area of university research, be it basic or applied, unless it involves a technology meeting all the following criteria:

- The technology is developing rapidly, and the time from basic science to application is short;

- The technology has identifiable direct military applications; or it is dual-use and involves process or production-related techniques;

- Transfer of the technology would give the U.S.S.R. a significant near-term military benefit; and

- The U.S. is the only source of information about the technology, or other friendly nations that could also be the source have control systems as secure as ours.

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Meanwhile, The DOD-University Forum Quietly

Pressed Ahead• From 1982 to 1984 the Working Group on Technology Export

Controls tried to define and then implement a category “unclassified but sensitive”; i.e.., Corson Panel gray areas.

• On April 17, 1984 the effort was abandoned in favor of two categories: “classified” or “unclassified”.

• We must “run faster” than our competition and adversaries.• May 24, 1984: DOD announced a draft national policy agreed to by

DOD and OSTP.• Further dialogue produced changes agreed to on 9-14-84.• October 1, 1984: Dr. DeLauer issued a memorandum to the

Services and DARPA - it was the basis for NSDD 189.• Forum’s report sought a “new era of closer cooperation”.

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“Scientific Communications and National Security” R. DeLauer

• Must distinguish science from technology; technology from know-how.

• Nature yields her secrets to anyone.• Ideas cannot be stopped at national borders.• Benefits of open publication far outweigh the risks.• “Ultimately the relationships among academia,

government and industry will depend on the trust and understanding among the people who work together and depend on one another.” Science, 10-5-84

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NSDD 189: September 21, 1985

“It is the policy of this Administration that, to the maximum extent possible, the products of fundamental research remain unrestricted. …that where the national security requires control, the mechanism for control of information generated during federally-funded fundamental research in science, technology, and engineering at colleges, universities and laboratories is classification.

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NSDD 189, con’tEach federal government agency is

responsible for: a) determining whether classification is appropriate prior to the award of a research grant, contract, or cooperative agreement and, if so, controlling the research results through standard classification procedures; b) periodically reviewing all research grants, contracts, or cooperative agreements for potential classification.

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NSDD 189 con’t

No restrictions may be placed upon the conduct or reporting of federally-funded fundamental research that has not received national security classification, except as provided in applicable U.S. Statutes.”

Ronald Reagan, September 21, 1985

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Two Questions

• Why did the President sign NSDD 189?– Dr. John McTague’s leadership was essential.– David Packard’s timely personal recommendation in support

of OSTP in the Oval Office.

• Why was the final clause added?– It was the compromise necessary to achieve coordination

and approval of it.– It also, however, planted the seeds of continuing debate and

controversy, especially after 911.

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Also in 1985

• Dr. DeLauer retired.• His personal leadership and collaborative

vision, and, quickly afterward, the DOD-University Forum, all came to an end.

• NSDD 189, however, has remained on the books- at least in spirit - for twenty years.

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After 911, Dr. Rice’s Letter in Reply to Dr. Brown and CSIS

• “In the context of broad-based review of our technology transfer controls that will begin this year, this Administration will review and update as appropriate the export control policies that affect basic research in the United States. In the interim, 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.” (November 1, 2001)

• Dr. John Marburger reaffirmed this at NAS, AAAS.• Energy Secretary Abraham recommended NSDD-189

be re-issued. (May 12, 2003)

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Question: Now, Three years later, How Deeply Different Is Today’s

Post-911 Environment?

• Changes seen since 1985:– Globalization of science and knowledge– Emergence of bio-warfare threats– Shorten time frames between discovery and

application– Instantaneous web-based global communications– Objectives and motivations of adversaries

• Some knowledge will always pose dangers.

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Back to October 13, 2005

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Control by the Scientific Community

• Precedent: Atomic scientists in the 1940s

• The Fink report

• Life Science Journal Editors

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Discussion Questions

• Does the approach of the last few decades seem appropriate in 2005?– Do universities have an obligation to take

new positions regarding classified research after 9/11?

– How do you think about risk and benefit in this context?

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Discussion Questions

• What would you do as a policy maker or legislator?

• What do you think of “self policing” of scientific journals?

• Should such self policing be unique to the life sciences, or are there other subjects to which you would extend it?