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AAU/COGR/NASULGC Letter to OSTP Director on Scientific Openness
January 31, 2003
The Honorable John Marburger Dear Jack: We write to thank you for the statements you made during the January 9, 2003 workshop sponsored by the National Academies of Science (NAS) and the Center for Strategic and International Studies (CSIS) on "Scientific Openness and National Security." As you know, we represent the presidents and chancellors, as well as senior administrators, of America's leading public and private research universities. We were particularly pleased to learn of the statements that you and Dr. Penrose Albright made reiterating that National Security Decision Directive 189 continues to remain in effect under the current Administration and that your office will see that the policy is sustained. When former President Ronald Reagan issued NSDD 189 in 1985, he established classification as the primary means for controlling research with national security implications and for restricting access thereto. NSDD 189 established a clear and concise national policy framework for controlling the flow of science, technology and engineering information produced through federal funds in colleges, universities and laboratories. Our universities continue to view NSDD 189 as the conceptual basis for any discussions of restrictions on research on college campuses. While we recognize the importance of protecting classified research, in recent years we have noticed that several federal agencies have begun to develop new terms for certain categories of information. There is for example the term "sensitive but unclassified," the term "controlled but unclassified," and the term "sensitive homeland security information." Our universities are deeply concerned about the proliferation of these designations and the lack of clarity regarding their coverage and use. Your leadership is essential in preventing the spread of such terms in the federal system. New ill-defined categorizations will create severe uncertainty among researchers and adversely impact the ability of students and faculty to conduct fundamental research across many, if not all, science and engineering fields. We are also concerned about the growing degree to which federal agencies are using grants and contracts to insert points of control or government clearance prior to publication of research data in otherwise uncontrolled or unclassified subject areas. As you are aware, even prior to September 11, 2001, universities were having difficulties interpreting federal grant and contract language based upon the International Traffic in Arms Regulations (ITAR) and other export control laws. While originally these troublesome clauses were limited largely to NASA, in recent months new examples have emerged in contracts from other agencies, such as the Department of Defense, and are based on regulations and rules other than ITAR. These clauses, inserted by agency program and contract officials, are best described as precautionary, attempting to control fundamental research with the potential to move into sensitive but unclassified areas. Such contract terms create a "gray area," where it is difficult, if not impossible, to determine whether research is in fact controlled. The uncertainty is aggravated by the fact that federal agency officials have not been forthcoming with explanations. Such "gray areas" have a pernicious effect, not only with regard to the freedom to publish, but also with regard to employment of foreign-born students and researchers on federally funded research projects. If the contract clauses require blanket screening of any and all foreign-born scientists, universities will object. They will find it increasingly difficult to participate in such research projects even though their faculties want to and are uniquely qualified to conduct that research. As you know, major research awards were refused recently by the University of California, San Diego, and by the Massachusetts Institute of Technology for these reasons. The above cited examples illustrate the difficult decisions for federal agencies and universities, as we jointly face heretofore unknown threats to national security. Nowhere is the challenge stronger than in the area of biological research, where the same knowledge can be used for breakthroughs in healthcare as well as for deadly acts of terror. We do not believe that the answer to the challenge lies in promulgation of regulations that inherently compromise the openness, vitality and productivity of our university enterprise. As discussed at the National Academies workshop, this is an area where the universities, researchers and the federal government need to take immediate steps to work together to weigh whether new measures of security and safety need to be adopted, and to assess whether controls are warranted, workable and wise. The AAU, NASULGC, and COGR stand ready and willing to work with you and others in the government to preserve the strength of our universities, support their ability to create and disseminate knowledge, to educate our future leaders and to protect the nation. Again, we very much appreciate your comments reaffirming NSDD 189, and your continuing leadership on these complex and vital issues. Cordially,
Nils Hasselmo
C. Peter Magrath
Katharina Phillips NH/RJT/TLS/law
cc: The Honorable Joshua Bolten, Deputy Chief of Staff to the President
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