Beyond 'Fortress America': National Security Controls on Science and Technology in a Globalized World (2009)

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Committee on Science, Security, and Prosperity Committee on Scientific Communication and National Security Development, Security, and Cooperation Policy and Global Affairs The NATIONAL ACADEMIES PRESS Washington, D.C. www.nap.edu 

THE NATIONAL ACADEMIES PRESS   500 Fifth Street, N.W.   Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the organizations or agencies that provided support for the project. Library of Congress Cataloging-in-Publication Data National Research Council (U.S.). Committee on Science, Security, and Prosperity.   Beyond “fortress America” : national security controls on science and technology in a globalized world / Committee on Science, Security, and Prosperity [and] Committee on Scientific Communication and National Security, Development, Security, and Cooperation, Policy and Global Affairs, National Research Council of the National Academies.     p. cm.   Includes bibliographical references.   ISBN-13: 978-0-309-13026-4 (soft cover)   ISBN-10: 0-309-13026-3 (soft cover)   1.  Communication of technical information—Government policy—United States. 2.  Communication in science—Government policy—United States. 3.  Technology and state—United States. 4.  Science and state—United States. 5.  National security—United States. 6.  Research—Government policy—United States. 7.  Export controls—United States.  I. National Research Council (U.S.). Committee on Scientific Communication and National Security. II. Title.   T10.5.N38 2009   382’.64—dc22 2009004539 Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334- 3313 (in the Washington metropolitan area); Internet, http://www.nap.edu. COVER: The fort on the cover page, built in the early 1800s, is located on Governor’s Island, N.Y. Copyright 2009 by the National Academy of Sciences. All rights reserved. Printed in the United States of America 

The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examina- tion of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to ­associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. www.national-academies.org 



Committee on Science, Security, and Prosperity John L. Hennessy (Cochair), President, Stanford University, Palo Alto, CA Brent Scowcroft (Cochair), President and founder, The Scowcroft Group, Washington, DC Ronald Atlas, Professor of Biology and Public Health, and Co-director of the Center for Health Hazards Preparedness, University of Louisville, Louisville, KY William F. Ballhaus, Jr., Retired, President and CEO, The Aerospace Corporation, El Segundo, CA Alfred R. Berkeley, III, Chairman, Pipeline Trading, New York, NY Claude R. Canizares, Vice President for Research and Associate Provost, Massachusetts Institute of Technology, Cambridge, MA Gail H. Cassell, Vice President, Scientific Affairs and Distinguished Lilly Research Scholar for Infectious Diseases, Eli Lilly and Company, Indianapolis, IN France A. Córdova, President, Purdue University, West Lafayette, IN Ruth A. David, President and Chief Executive Officer, Analytic Services Inc., Arlington, VA Gerald L. Epstein, Senior Fellow for Science and Security, Homeland Security Program, Center for Strategic and International Studies, Washington, DC John Gage, Partner, Kleiner, Perkins, Caufield & Byers, Menlo Park, CA B. R. Inman, LBJ Centennial Chair in National Policy, University of Texas, Austin, Austin, TX Anita Jones, Lawrence R. Quarles Professor of Engineering and Applied Science, School of Engineering and Applied Science, University of Virginia, Charlottesville, VA Judith A. Miller, Sr. Vice President & General Counsel, Bechtel Group, Inc., San Francisco, CA  

Norman P. Neureiter, Director, Center for Science, Technology and Security Policy, American Association for the Advancement of Science, Washington, DC Elizabeth Rindskopf Parker, Dean, McGeorge School of Law, University of the Pacific, Sacramento, CA John S. Parker, Senior Vice President, Science Applications International Corp., Alexandria, VA Suzanne D. Patrick, Independent Consultant, Washington, DC Deanne Siemer, Managing Director, Wilsie Co. LLC, Washington, DC Mitchel B. Wallerstein, Dean, The Maxwell School, Syracuse University, Syracuse, NY Project Staff Patricia Wrightson, Study Director Ryan Zelnio, Research Associate Mahendra Shunmoogam, Sr. Program Associate (through 12/07) Pushkar Joshi, Christine Mirzayan Science and Technology Policy Graduate Fellow (Winter 2008) Michael Tu, Christine Mirzayan Science and Technology Policy Graduate Fellow (Fall 2008) vi 

Preface The national security controls that regulate access to and export of science and technology are broken. As currently structured, many of these controls undermine our national and homeland security and stifle American engagement in the global economy, and in science and tech- nology. Fixing these controls does not mean putting an end to them, but implementing reforms based on the realities of the risks and opportuni- ties of today’s threats to the nation. A growing number of leaders in academia, industry, and govern- ment now concur that the system of national security controls needs fundamental change. The National Research Council of the National Academies convened the Committee on Scientific Communication and National Security, a select group of national security officials and ­leaders from the sciences, the defense industry, the information technology ­sector, academia, and the legal community (listed in Appendix A), to assess the impact of these controls. Being in agreement on the pervasiveness of the difficulties, they concluded that attempts to modify the existing regula- tions or to give guidance to the enforcing federal agencies would be insufficient, because the problems were both large and system wide. They recommended that the National Research Council assemble a committee to conduct a systemic review of the national security controls that oversee scientific and technological research and development. Subsequently, the National Research Council established the ad hoc Committee on Science, Security and Prosperity to propose policy solu- tions. Members were selected on the basis of their participation in the creation and implementation of the current system of national security controls, or their expertise in various fields of science, industry, or univer- sity administration. Their biographies are listed in Appendix B. vii 

viii PREFACE The committee’s charge was to produce a report on the relation- ship between scientific and technological advances and national security threats, and the global context within which they interact. Specifically, the report addresses (1) the changes in scientific and technological advances, interlocking global economies, and current geopolitical ­factors since this regulatory system was established; (2) the problems with the current federal regulatory system related to national security that oversees the conduct of science and technology; and (3) recommendations for making fundamental changes to the system of export and visa controls. The committee reviewed reports and recommendations from the organizations listed in Appendix D. They also heard from government and private sector experts, and tested proposed policy changes through debate and discussion. The committee also reviewed the extensive collec- tion of the Academies’ reports, listed in Appendix E, that have addressed science and security concerns for more than 25 years, beginning with the 1982 report, Scientific Communication and National Security, through to the 2007 release of Science and Security in a Post 9/11 World. The committee’s findings confirm the urgent need for fundamental policy change to counteract the harm that is being done to national security and economic prosperity by national security controls adopted in the 1960s and 1970s that reflect Cold War-era policies.  The committee recommends specific provisions for an Executive Order, issued by the President, to govern a revamped set of controls that will promote the United States’ scientific and technological com- petitiveness, while more effectively protecting national and homeland security. The committee recommends decisions at the presidential level, as this will be required to bring bureaucratic coherence to the network of national security rules and regulations that now spans eight agencies of the federal government. In conclusion, we would like to add a personal note of deep appreci- ation to the committee members and staff who helped us to come up to speed on the committee’s deliberations. Their wide-ranging expertise and commitment to the project made our participation very rewarding. Brent Scowcroft Cochair John Hennessy Cochair 

Acknowledgments This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with procedures approved by the National Research Council’s Report Review Committee. The purpose of this independent review is to pro- vide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the delib- erative process. We wish to thank the following individuals for their review of this report: ­Norman Augustine, Lockheed Martin (Retired); Lewis Branscomb, Harvard University; William Burns, United States Army (Retired); Barry Carter, Georgetown University; David Goldston, P ­ rinceton University; Seymour Goodman, Georgia Institute of Tech- nology; John Gordon, United States Air Force (Retired); Maura Harty, International Center for Missing and Exploited Children; J. Christian Kessler, U.S. State Department (Retired); Ellen Laipson, Henry L. Stimson Center on Global Security; James McGroddy, IBM (Retired); Michael Moodie, Chemical and Biological Arms Control Institute; R ­ andall Murch, ­Virginia Polytechnic Institute and State University; Eva Pell, Pennsylvania State University; William Reinsch, National Foreign Trade Council; Scott Silverston, United States Military Academy; John Steinbruner, University of Maryland; and William Webster, Milbank, Tweed, Hadley & McCloy. Although the reviewers listed above have provided many construc- tive comments and suggestions, they were not asked to endorse the conclusions or recommendations, nor did they see the final draft of ix 

 ACKNOWLEDGMENTS the report before its release. The review of this report was overseen by Robert Frosch, Harvard University, and Granger Morgan, Carnegie Mellon University. Appointed by the National Academies, they were responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully considered. Responsibility for the final content of this report rests entirely with the authoring commit- tee and the institution. 

Contents Summary 1 I. Introduction 13 II. Findings 17 Finding 1, 17 Finding 2, 28 Finding 3, 42 Finding 4, 56 III. Recommendations 59 Recommendation 1, 59 Recommendation 2, 73 Recommendation 3, 78 IV. Conclusion 81 Appendixes A Committee on Scientific Communication and National Security Roster 83 B Committee on Science, Security, and Prosperity Biographies 85 C Background on the Roundtable/Commission on Scientific Communication and National Security 99 D Recent Studies and Initiatives Outside The National Academies 101 xi 

xii CONTENTS E Related National Academies’ Studies 107 F Government Agency Jurisdiction and Export Decision Tree 110 G Possible Topics for Future Research 123 H ITAR and CCL Control Lists by Category 127 I Principles to Underpin the Militarily Critical Technologies List 129 J Export Control Legislation in the 110th Congress 131 K Commerce Control List Overlap with Multilateral Agreements 135