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III. Recommendations In the committeeâs view, it is important to act immediately, within the boundaries of the Presidentâs executive authority, to make the changes that will stem a serious decline affecting broad areas of the nationâs security and economy. Recommendation 1 The President should restructure the export control process within the federal government so that the balancing of interests can be achieved more efficiently, and to prevent harm to the nationâs security and tech- nology base; as well as promote U.S. economic competitiveness. A.â Recognize the interdependence of national security and economic competitiveness factors in making export control decisions with respect to individual requests for licenses through a principle-based system. B.â Apply âsunsetâ requirements to all items on export control lists that are controlled unilaterally by the United States, and require find- ings to be made every 12 months that removing controls on an item would present a substantial risk to national security. C.â Establish as a new administrative entity a coordinating center for export controls, with responsibilities for coordinating all interfaces with persons or entities seeking export licenses and expediting agency processes with respect to the granting or denial of export licenses. D.â Establish an independent export license appeals panel to hear and decide disputes about whether export licenses are required, whether particular decisions to grant or deny licenses were made properly, and whether sunset requirements have been carried out properly. 59
60 BEYOND âFORTRESS AMERICAâ It is necessary to ameliorate the policy logjam that is the unintended consequence of Congressâs inaction over dual-use export controls. The new President needs to resolve the long-standing clash between the cabinet departments that are the guardians of national and homeland security interests, broadly defined, and the cabinet departments that are the promoters of national economic interests. It is only at the presiden- tial level that the competing bureaucratic interests of these two areas can be weighed and the current system reformed, so as to stem the decline that so urgently needs attention. This approach is not an attempt to do an âend runâ around one of the branches of government, or to short- circuit political debate, but responds to the marked inability of recent Congresses to address this issue. In the absence of legislation, the International Economic Emergency Powers Act of 1977 gives authority to the President to structure the regulatory framework of the dual-use export controls system. An export control system that was last significantly updated in the 1980s cannot provide the framework to deal with todayâs security, eco- nomic, and technological realities. Congress will eventually succeed in bringing the export control regime into the twenty-first century. But the health of the U.S. scientific and technological enterprise, and the national security imperative to keep abreast of technological develop- ments worldwide, can no longer wait for Congress to overcome the obstacles it has faced in this arena. This report therefore identifies actions that the President can take under existing legislative authority to initiate necessary reforms. Not only will these reforms support eco- nomic vitality and promote national security, but they will create a track record and experience base that Congress can evaluateâand modify as it sees fitâat such time as export control legislation can be successfully addressed there. In the meantime, it will be important to keep Congress apprised of the actions recommended here and their effects, and to maintain a Âdialogue on the nature of a future package of legislative reforms. In removing the pressure for Congress to take immediate action, the pro- posals made can facilitate the longer term legislative process. Restructuring the export control process does not involve abandon- ing all export controls. Rather, the committee recommends that two policy changes and two structural changes be made in order to retain See United States Export Controls by William A. Root, John R. Liebman, and Roszel C. T Â homsen II, 5th edition. Aspen Publishers, 2007, Chapter 1, pp. 9, 11-12.
RECOMMENDATIONS 61 needed export controls while shedding the largest obstacles to an effi- cient system. With these changes implemented in an expedient manner, the United States will stem the loss of technological and economic com- petitiveness and begin to benefit from carefully targeted and calibrated controls that reflect and meet current challenges that the country faces in protecting both our national security and our economic well-being. Recognize the interdependence of national security and economic competitiveness through a principle-based system. Our current circumstances require clear articulation of the prin- ciples that underlie our export control decisions. The committee recom- mends that these principles should be: Maintain the value of protecting traditional U.S. national security in export control policy. Historically, the goals of U.S. export controls have been to deny the transfer of weapons or weapons-related components and technologies to our adversaries, and to ensure the adequate flow of critical supplies during wartime. These goals have been motivated by core national security values: maintaining military advantage on the battlefield and sustaining the homeland. These are and should remain core values of export control policy. Yet by themselves they are no l Âonger sufficient, because they do not reflect the profound changes to our national security environment that have occurred since the end of the Cold War. Recognize that today this value must be balanced against the equally imporÂ tant value of maintaining and enhancing the scientific and technological competitiveness of the United States. As discussed in Chapter 1, this post-Cold War era has been characterized by four main developments: the rise of new state and non-state adversaries, economic globalization, the diffusion of scientific and technological expertise, and the fraying of the Cold War consensus among the countries of the anti-Soviet West. In this âflatterâ world, the United States now has competitors in science and technology and therefore must be able to compete. This is no longer just an economic maxim; it has become a national security imperative. This means that decisions on controlling items or categories of items should consider with equal weight the potential impact of their control on Americaâs scientific and technological competitiveness and military capabilities.
62 BEYOND âFORTRESS AMERICAâ Allow openness and engagement to prevail unless a compelling case can be made for restrictions. Our market economy, our research enterprise, our collaboration with other nations to defend ourselves, and our demo- cratic system of government all rest on a foundation of openness and international engagement. Questions regarding possible controls and restrictions on science and technology must therefore start with a strong presumption for openness. Articulate a rational basis for each restriction. Given the inefficiencies associated with restricting openness and engagement, such restrictions can be justified only when they can be implemented effectively and when their security benefits specifically outweigh the harm they will necessar- ily cause with respect to other values and objectives. Therefore, restric- tions on an unclassified technology should be implemented only when: â¢ The United States alone, or the United States and cooperating allies, possess technology that leads not only to identifiable military advan- tage, but to an advantage that is likely to persist for a significant period of time (i.e., the time needed to field a system based on that technology); â¢ The United States, or the United States acting together with allies, control the technology such that they can prevent it from moving into the hands of possible adversaries; â¢ The restrictions do not impose costs and inefficiencies that are disproportionate to the restrictionsâ security benefits; and â¢ Restrictions are re-examined and re-justified periodically to ensure they remain appropriate. Protect the capability to ârun faster.â Advances in exploiting technology and in furthering research are typically made when the fundamentals in a field of science are understoodâa process that generally takes place in the unclassified and the international communities. The U.S. research and development sectorsâpublic and private research labs and industryâmust remain better prepared to anticipate and capitalize on research breakthroughs than those who would use these advances to harm us or compete against us economically. Treat weapons separatelyâbut define them narrowly and precisely. Every government retains the right to decide to whom it wishes to sell m Â unitionsâdecisions that may not depend on whether other nations agree, or whether there are economic advantages to be foregone. How-
RECOMMENDATIONS 63 ever, serious complications can result from attempts to treat weapons components, subsystems, and parts as weapons themselves when those subsystems and components draw from a commercial or global technol- ogy base. If weapons are to be controlled under a specialized munitions regime, âweaponsâ must be delineated from everything else, and that definition should not extend weapons controls to broad swaths of tech- nologies with multiple applications. Recognize the âglobal public goodâ nature of health-related technoloÂ gies. Even if restricting health-related technologies could be argued to impair an adversaryâs ability to pose deliberate threats to health, such as by developing biological weapons, in many cases, the global ability to counter naturally occurring disease would suffer as well. All countries are threatened when any of them have difficulty containing and treat- ing disease, so such controls would not be in the United Statesâ (or the worldâs) interests. Therefore, transfer of technologies and substances needed for public health should not be restricted to legitimate recipients such as public health or research organizations. When the licensing agency applies principles to decisions about export controls, the focus will stay on why items should or should not continue to be controlled rather than on adding to otherwise static lists of controlled items. This kind of governance system can assess each decision as to whether an item should be controlled against the govern- ing principles that have been established within the system. Doing so can ensure that the remaining controlled items are relevant to rapidly changing global conditions and can help ensure that decisions are made in a timely manner. Apply âsunsetâ requirements to unilaterally U.S. controlled items on export control lists No version of the current control system should survive without an effective method for pruning items from the control lists when they no longer serve a significant definable national security interest. The This set of principles provided the basis for a list of principles that could inform the Militarily Critical Technologies List, as requested by the Office of International Technology Security, Office of the Director of Defense Research and Engineering, Office of the Secretary of Defense. See A Â ppendix I for the proposed list of principles.
64 BEYOND âFORTRESS AMERICAâ method for pruning the lists should be disciplined, regularly scheduled, and based on a presumption that a listed item will be removed from con- trol unless a rational justification can be presented for maintaining it on the list. Items from the lists that are classified weapons systems and those for which the Defense Department provides a compelling exemption rationale would remain controlled. However, component parts of weap- ons, if available on the open market outside the United States, would be eligible for de-control. Thus, for a listed technology that is implemented at multiple levels of capability, the boundary separating what is and what is not controlled should be frequently evaluated and adjusted using the same principle: if a level of implementation of a technology is available on the open market, then it should not be controlled. The committee recommends a âsunsetâ rule under which every item on every list that controls exports will be taken off the list at a specified time during each calendar year unless a justification can be presentedâ consistent with the principles enunciated aboveâfor maintaining the particular item or category on the list. Any party with a governance or economic interest in the decision to keep an item on the list could appeal to the independent appellate body recommended below. The recent report of the Deemed Exports Advisory Committee contains practical suggestions in this regard. The pruning exercise will be arduous the first time it is conducted. Thus, the most efficient starting point would be the 128 categories of the Commerce Control List that do not appear on lists of the multilateral control regimes (see Appendix J). The Coordinating Center for Export Controls The decision-making authority on export control licenses rests with the Department of Commerce and the Department of State. The Depart- ment of Stateâs interests cover weapons-related aspects of national secu- rity policy, such as non-proliferation and arms control generally, as well as more traditional foreign policy concerns. The Department of Commerceâs role focuses on the tradeoffs between national economic performance and security. Both of these departments have Âresponsibility for interfacing with those seeking export licenses. As a result, the public can receive conflicting advice and direction from the two, whose juris- dictions technically do not overlap, but whose practices in implement- See, for example, Recommendation #2 of the DEAC Report, pp. 21-22.
RECOMMENDATIONS 65 ing their control regimes frequently lead to conflicts. The committee recommends a âone-stop shopâ for export control licensing as far as interacting with the public is concerned. A new administrative entity, the Coordinating Center for Export Controls, would be established. This small coordinating entity would be responsible for: â¢ Receiving all applications for export licenses; â¢ Determining whether the Department of Commerce or the Department of State should handle the license application and dispatch the application to the appropriate place for decision; â¢ Maintaining timetables for decision making on license applica- tions so that applications do not languish; â¢ Receiving decisions on applications from the designated agencies and distributing these decisions to applicants; â¢ Receiving appeals of licensing decisions and petitions for review of sunset decisions, and delivering these to the appellate panel (see description below); â¢ Maintaining timetables for decisions on appeal; â¢ Receiving decisions on appeals and distributing these decisions to the applicants; â¢ Providing administrative support to the appellate panel (see description below); and â¢ Monitoring and oversight of the sunset process. The Presidentâs Order would give the director of the Coordinating Center for Export Controls signature authority binding on government civil servants supervising the export control entities within the Depart- ments of Commerce and State. Under this mandate, the signature of the director on an order determining which agencyâCommerce or Stateâshould handle a particular application would be binding on both agencies. The Coordinating Center would use existing statutory criteria in making its determination as to the agency to which an application should be assigned. The current statutory criteria are sufficientâthey are just interpreted differently by the different agencies. With a single Coordinating Center, the determinations under the statutory criteria would be consistent. The Presidentâs Order would provide that no agency could deal with an export control application without first hav- ing obtained the signature of the director on such a determination. The decision of the Coordinating Center, with respect to which agency handles the application, would not be appealable until the licensing
66 BEYOND âFORTRESS AMERICAâ decision is made. At that time, the âlosingâ agency could, if it wished, appeal on the grounds that, under existing statutory criteria, it should have had the assignment. At that time, it can also argue how it would have decided the case had it been given the assignment. The Presidentâs Order would give the director the authority to estab- lish default-to-decision orders with respect to timetables for decisions on licensing applications. Thus, for example, the director could establish that if the timetable is not met, the license will be granted automatically on the terms set out in the application. Similarly, the director would have the authority to establish a default-to-decision timetable under which an item would be removed from the control list if the âsunsetâ process were not completed in a timely manner by the agency. Under a default- to-decision system, the applicant obtains an order that is enforceable (by general order of the President) unless the agency appeals and succeeds before the Appeals Panel. The agencies that make decisions on licensing applications have established consultative processes with other agencies that may have an interest in the subject matter. Those consultative relationships would remain in place. The Presidentâs Executive Order would facilitate the consultative process by providing for additional transparency. The C Â oordinating Â Center would publish, on an appropriate website, the receipt and assignment for decision of all applications, the agency d Â ecision, and any appeals filed. Matters that require protection with respect to national security concerns would be made known to agencies with relevant jurisdiction through alternative methods established by the director. Transparency in the assignment process will give Âresearchers, corporations, and agencies with ancillary or subject-matter concerns an opportunity to take part in the initial decision-making process of the Departments of Commerce and State. Similarly, transparency in the appeals process will allow persons and agencies that have not been consulted for some reason, or that oppose a particular decision, an efficient forum in which to be heard. In this way, the current competition between export control-related units of the Department of State and the Department of Commerce can be mitigated by consolidating all public interface into a single entity external to the two operating departments. The new Coordinating C Â enter for Export Controls will serve as a single entry point for all licensing requests. It would then determine the appropriate agency to handle the licensing request, and would pass it on accordingly. The department to which the request has been submitted would give its
RECOMMENDATIONS 67 decision to the center, which would provide the response to the license seeker. The center would coordinate the appeals process if objections are raised by interested persons or agencies. The best organizational home for the Coordinating Center would be within the National Security Council (NSC) structure and with the Coordinating Centerâs director reporting directly to the National Secu- rity Adviser. This placement in the White House structure will ensure the independence of the Coordinating Center and establish its relation- ship to the President. The Coordinating Center would not necessarily be co-located with the NSC, as this would not be required for an effective exercise of its powers under the Executive Order. The committee weighed several options before making the recom- mendation for a new coordinating center and locating it and the Appeals Panel within the NSC. There are five such options: (1) do nothing, which would keep things as they are; (2) create an interagency group; (3) estab- lish a group of private sector individuals; (4) create an agency within one of the cabinet departments that has licensing authority, or which plays a role in the licensing process; and (5) establish an independent center with a separate appeals panel that is housed within a government agency that is not directly involved with licensing decisions. In the committeeâs view, doing nothing is simply not viable, as discussed above (see in particular Finding 2). Bureaucratic infighting among the departments that are primarily responsible for licensing will not cease until they are compelled to do so. The second option, to create an interagency group, was rejected because experience supports the con- clusion that this would devolve into just another debating society and would not constitute a practical means to improve the existing system. The option to establish a group made up of private sector members was rejected because that alternative would not be acceptable to the gov- ernment agencies involved. The option to place this responsibility with the Department of Defense was rejected, because Defense, through its management of the Militarily Critical Technologies List, is an important player in the export control regime. Similarly, any placement within any cabinet-level department involved in licensing would also compromise Several attempts were made in the 1990s to create interagency groups to oversee reforms to export control jurisdiction involving commercial satellites and jet engine âhot sectionâ technol- ogy. These various groups were unable to come to any consensus and ultimately the NSC âtook control of the processâ and was able to draw up a consensus in 1996. See Chapter 9 of the 1999 Cox Commission report, U.S. National Security and Military/Commercial Concerns with the Peopleâs Republic of China.
68 BEYOND âFORTRESS AMERICAâ the independence of the coordinating center. The option to place these administrative functions with the Office of Management and Budget was also considered. Although neither the NSC, nor the Office of Manage- ment and Budget is an operational agency, the committee thinks that the NSC is the better fit because of its focus on national security and economic policy. In addition, the chain of command would have the coordinating centerâs director reporting directly to the National Secu- rity Advisor. The advantage of placing these entities within the NSC is that it would signify the importance of these issues, in terms of both national security and economic policy. It would also serve as a brake on the coordinating centerâs director, in terms of choosing his or her battles carefully. The Export License Appeals Panel An independent, neutral decision-making authority is required to break the logjams in the system caused by philosophical differences and varying interpretations of statutory, regulatory, and executive order lan- guage. The agencies of government with licensing authority and Âpolicy responsibility have become increasingly unsuccessful at producing rel- atively uniform export-related policy decisions that favor Americaâs national security, war-fighting capabilities, or economy. This has been due in part to classic bureaucratic infighting, but also in part to the characteristic difficulties that large bureaucracies have in responding to changed conditions âon the ground.â Two kinds of issues can be resolved quickly and effectively using an appellate decision-making panel. â¢ First, if the agency makes a decision either requiring or not requir- ing a license, and a party or a government agency believes the matter was wrongly decided, there is an avenue to resolve these differences. â¢ Second, if the agency fails to remove an item or category of items from the control list under the sunset requirement, or does not act at all within the one-year time period for review of each item on the list, an affected party could appeal either to reverse the agencyâs determination, or to require the agency to act in a timely way to make the necessary determination. The committee recommends that an independent export license appeals panel be appointed by the President or the National Security
RECOMMENDATIONS 69 Advisor. Panel members would serve a five-year term. The panel would be co-located with the Coordinating Center and would be housed, for administrative purposes, under the same organizational umbrella. Appeals panels such as this one are not âdirectedâ by an administrative authority. This kind of panel acts independently and neutrally to resolve disputes. It has no operational responsibility other than to hear disputes and issue opinions. The panel would consist of seven active or retired federal judges, one of whom would serve as chair. Three members would be assigned by the chair to serve on a panel to hear a particular dispute. Using three- member panels selected by lot or in rotation from a seven-member body would help ensure impartiality, immediate availability, and a breadth of expertise. The seven judges selected to serve on the panel would each have significant experience in deciding disputes involving complicated technical matters. As is common in courts on which numerous judges serve, the judges would meet from time to time in conference with all members present to discuss particular issues or processes that needed a unified approach from the panel. Although the disputes may involve deeply technical issues, the rea- sons for recommending a body of judges are the following: First, experienced judges know how to make a decision-making pro- cess work efficiently and fairly. If export control decisions can be chal- lenged quickly, involving all interested agencies and parties, there will be less risk of harm to economic competitiveness or national security. Second, judges understand the inherent advantage of a coherent body of decisions that are consistent and based on principle to the maxi- mum extent possible. The new export control regime recommended by the committee is based on principles that are readily applied in practical decision-making with respect to export controls. It is at times difficult to get presidential action on appointments in a timely way, particularly at the beginning of an administration when there are many competing concerns. For that reason, the Presidentâs Executive Order would allow 90 days from the date of issuance of the Order for the appointments to be made through the presidential process and after that the appointments would be made by the Chief Judge of the federal Court of Appeals for the District of Columbia Circuit within 30 days. Replacement judges would be selected in the same way. No Senate confirmation is required because this is not a âcourtâ; it is an administrative panel assembled by the President to assist agencies in carrying out their responsibilities. This panel makes decisions among competing interests of agencies the same way the NSC staff makes decisions about the competing interests of State and Defense.
70 BEYOND âFORTRESS AMERICAâ Third, this approach provides the best available method for bring- ing critical technical expertise to bear on the necessary decisions. No appointed body of subject matter experts can encompass all the tech- nical capabilities required to make correct decisions with respect to export controls, because the number of fields is simply too large and the technology at issue changes too often. Judges are very familiar with the need to have active participation and rational argument from r Â esearchers, Â prospective exporters, government agencies, and others who have important interests in correct export control decisions when complex technical questions must be resolved correctly and fairly. Expe- rienced judges know how to deal with the testimony of dueling experts. In rare cases in which party-appointed experts do not suffice, judges will appoint independent experts to give advice and receive amicus briefs from interested persons or agencies who are not parties to the particular dispute. Fourth, over the years, judges have dealt very successfully with national security concerns and the need for protection of classified information that may bear upon the decision-making process. There are established methods for protecting testimony and records that may involve national secrets. One-time clearances are used by national secu- rity agencies for instances in which outsiders need to be brought within the security clearance circle for a special purpose. Special chambers that have been cleared by security agencies are available when classified national security topics must be explored. Fifth, judges are truly neutral with respect to the kinds of disputes to be resolved within the export control system, and as such are a better option than the available alternatives such as panels of subject matter experts, government officials, or others who bring specific viewpoints to the table. Under the appeals system, issues would be presented in these ways. (1) An exporter whose license application was denied could appeal to the panel for a reversal of the agencyâs decision. The agency that denied the application could present written arguments supporting the denial, and any other interested agency or person could present written argu- ments on either side of the question. (2) An agency that opposed the grant of an export license (by another agency) could appeal, seeking a reversal of the licensing decision. (3) A researcher, research institution,
RECOMMENDATIONS 71 or exporter whose activities were affected by the inclusion of an item or category of items on one of the control lists could challenge the decision of the responsible agency not to sunset the listing, or could challenge the failure of the agency to act within one year on particular items on the list. Any agency or person who wanted to maintain the item or category of items on the list could present written arguments to that effect. (4) An agency whose processes were adversely affected or whose responsible officials believed that the national interest was adversely affected by a decision to apply a sunset requirement to a particular item from a list could appeal the decision to take the item off the list. As necessary, the panel could hear the testimony of subject matter or national security experts with respect to technical aspects of the issues presented. The panel will make what might be characterized as âpolicyâ deci- sions insofar as it is deciding whether a particular item or technology should be exported to a particular end user and, in some cases, whether that end user might reasonably be expected to divert the exported item in a way that is not allowed under U.S. law. However, with the p Â rinciple-based system recommended by the committee, the general guidance for making these decisions is clarified, and with the participa- tion of all interested parties and agencies, the panel will have before it all the relevant considerations. In the end, almost all governmental deci- sions are âpolicyâ decisions in one respect or another. An independent, neutral panel of the type recommended can make proper decisions in this regard. Efficient operation of the entire export control regime can h Â appen only if a fair mechanism like this for breaking bureaucratic deadlock is built into the system. The panel would operate on a part-time basis, meeting only when appeals were pending. The panel would hear a matter within 60 days and issue a decision within 30 days. Like the rule on Presidential vetoes, there would be a default-to-decision rule that if the panel did not act within the required time limits, the decision of the agency would be affirmed. However, judges are accustomed to acting within time limits, particularly in the criminal context where due process requirements dictate a speedy trial, so timely action is unlikely to be a problem. The Presidentâs Executive Order would provide that the panelâs decision would be final, except for provision for an appeal by any party to the President through the NSC within 15 days when extraordinary issues of national security or economic competitiveness were at stake. Finality of a decision means that the export license is either granted or denied, or
72 BEYOND âFORTRESS AMERICAâ the control-listed item is either continued on the list or taken off the list, upon the issuance of the opinion and the passage of the 15-day appeal period. Exporters granted a license by a decision (or operating under the de-listing of an export item) would need no further action from the agency in order to export. The panelâs order would provide the required documentation. The panelâs unclassified hearings would be open to the public and its unclassified rulings would be published on an appropriate web- site immediately upon issuance so that all interested parties would be informed. Classified hearings and rulings would be summarized in a way that protects classified information and published in that format. This is the same general procedure that judges follow in ordinary cases when materials relevant to a case are sealed to protect minors, for privacy reasons, or for national security concerns. The committee recommends that the Coordinating Center and the Appeals Panel be put into operation quickly and efficiently so that the necessary changes in the current export control system can get under way without delay. Bureaucratic delays over administrative matters can kill any good idea. These objectives can be met if the Coordinating Center and the Appeals Panel are a relatively inexpensive operation, requiring little institutional support or operational funding. The com- mittee recommends that the two entities be housed together; that the Coordinating Center provide the necessary administrative support for the Appeals Panel so that no separate staff need be assembled for that purpose; and that maximum use be made of digital automated systems for the processing and publishing of matters by both entities. The com- mittee recommends that these new entities be located in space within an existing agency that has no connection to the Commerce Department, the State Department, or the Defense Department, but that is involved in handling and resolving disputes so that the necessary facilities for judicial functions will be available immediately on a part-time basis. The Federal Trade Commission, the International Trade Commis- sion, and the Department of Justice have well-suited existing facilities, and possibly, the Office of Science and Technology Policy might also be a suitable venue. It is important to assemble the small staff for the Coor- dinating Center and the panel of judges within a short time and to begin operations right away in âborrowedâ facilities. This approach does not require any substantial infrastructure; only a clear mandate, a small tran- sitional budget, and an accelerated timetable for becoming fully opera- tional. This would provide a âneutralâ site, not associated with any of
RECOMMENDATIONS 73 the agencies primarily involved in the export license process. Neutrality is an important aspect of the panelâs processes, and having an independent physical location within an agency already set up for appellate proceed- ings will be a very substantial advantage for the panel in establishing its bona fides for all participants in the export control process. Recommendation 2 The President should direct that executive authorities under the Arms Export Control Act and the Export Administration Act be admin- istered to assure the scientific and technological competitiveness of the United States, which is a prerequisite for both national security and economic prosperity. A.â Maintain the Fundamental Research Exemption as provided by National Security Decision Directive 189 that protects unclassified research, and ensure that it is properly implemented. B.â Create an economic competitiveness exemption that eliminates export controls on dual-use technologies where they, or their functional equivalents, are available without restriction in open markets outside the United States. The Fundamental Research Exemption The President should reaffirm, in its current form, the Fundamental Research Exemption set out in National Security Decision Directive 189. This policy statement has worked well since its inception in 1985. The policy statement defines fundamental research broadly in these terms: âFundamental researchâ means basic and applied research in science and engineering, the results of which ordinarily are published and shared broadly within the scientific community, as distinguished from proprietary research and from industrial development, design, production, and product utiliza- tion, the results of which ordinarily are restricted for proprietary or national security reasons. This policy is intended to provide a bright line: if fundamental research is not classified through application of the normal classifica- See footnote 44, Chapter 2, p. 48.
74 BEYOND âFORTRESS AMERICAâ tion system provided for protection of national security secrets, then its conduct and its reporting should not be restricted. Normally, universi- ties separate their research activities so that only open research is done at campus facilities and any classified research is done at off-campus facilities, or is not undertaken at all. The committee recommends that the Fundamental Research Exemp- tion be maintained, adhered to, and properly implemented. Universities and other research institutions have worked under this regime success- fully and have in place the necessary mechanisms to comply with the exemption. The Economic Competitiveness Exemption The committee recommends that a second overarching principle should be incorporated into the export control system by presidential directive. With the development of global markets and very significant scientific and technological centers in foreign countries, the United States can no longer realistically control dual-use items that are, or soon will be, legally available in open markets overseas. Controls on these kinds of items cause far more harm to national security and economic prosperity than they afford protection from threats emerging from for- eign sources. When a hostile state or non-state terrorist group can find information or buy components or products on the open market in foreign countries, then the United States gains no significant protection by prohibiting legitimate U.S. companies from exporting these items to legitimate overseas purchasers. The President should create, by Executive Order, a new Eco- nomic Competitiveness Exemption. This exemption would provide as follows: It is the policy of this Administration to foster and support the competitiveness of American science and technology on a world-wide basis to the maximum extent possible. Scientific and technological information, components, and products may be controlled for export or deemed-export purposes only if the information, component, or product (1) has received national security classiÂ fication; (2) has been generated or produced under a federally-funded grant or contract subject to written provisions, agreed at the outset of the grant or contract, restricting export or deemed export; (3) is controlled under stan- dards recommended by a recognized professional body; or (4) has not been published or, by embodiment in a process or product, is not readily available in the open public market outside the United States. Information, components or products that are sufficiently close to becoming available in the open public
RECOMMENDATIONS 75 market outside the United States so that it is in the best interests of national economic competitiveness to allow export, may also be exempted. However, nothing in this exemption prevents the Department of State from declaring certain hostile countries, terrorist organizations, or individuals as ineligible to obtain exports from the United States. The committeeâs recommendation with respect to the Economic Competitiveness Exemption provides another bright line and takes account of five important factors. First, as with the Fundamental Research Exemption, this exemption would recognize the primacy of classification for national security rea- sons. Any information, component, or product that is classified should not be exported (except as part of a country-to-country exchange of classified information, as is currently the case). As pointed out below, the classification system needs an intensive review and overhaul, but that is not the subject of this report. The existing classification system can be accommodated within the committeeâs recommendations, and the committee does not address any changes in that system. Second, this exemption would recognize that federally funded pro- grams or projects may be governed by contracts or terms, agreed on by the recipient of federal funds in advance, that impose export controls where the funding agency elects to do so. So long as legitimate and defensible ground rules are established in advance, and the recipient of the federal funds knows that export controls may be imposed, then the choice to accept those controls is freely made. Third, this exemption incorporates a voluntary corollary to the Fundamental Research Exemption to cover situations in which a pro- tocol recommending constraints has been developed by responsible professional bodies. One example of this kind of voluntary system is For example, the National Science Advisory Board for Biosecurity proposes that the following criterion be used to describe dual use research of concern: âResearch that, based on current underÂ standing, can be reasonably anticipated to provide knowledge, products, or technologies that could be directly misapplied by others to pose a threat to public health and safety, agricultural crops and other plants, animals, the environment, or materiel.â Proposed Framework for the Oversight of Dual Use Life Sciences Research: Strategies for Minimizing the Potential Misuse of Research Information. A Report of the National Science Advisory Board for Biosecurity (NSABB). June 2007. p. 17. Available at http://www.biosecurityboard.gov/Framework%20for%20transmittal%200807_Sept07.pdf. Last accessed July 25, 2008.
76 BEYOND âFORTRESS AMERICAâ the response by the scientific community to the perceived risks asso- ciated with gene-splicing research. Another example is the work of the advisory board established to provide reassurance that advances in biotechnology with potential applications for bioterrorism or biologi- cal weapons development would receive responsible oversight. When professional bodies develop voluntary standards, the government could use those standards to impose related export controls. Fourth, when U.S. companies have a competitive edge, and informa- tion, components, or products are not yet readily available on the open market overseas10 but shortly will be, a balancing test would be applied to determine if export is in the best interests of the United States. The determination with respect to a particular export license would rest on considerations such as allowing a U.S. company to become the leader in the field and preempt foreign competition by selling overseas; foster- ing the use of U.S. products rather than another countryâs products (so that the content of these products is known in the United States should that become important for homeland security or other national security purposes); or maintaining U.S. competitiveness in a particularly impor- tant field. Fifth, this exemption recognizes that the Department of State must continue to have the option to deny exports for foreign policy reasons to countries whose policies and behavior are considered inimical to the interests of the United States and its citizens and private corporations, as well as to private entities or individuals known to have dealings with hostile states or with terrorist organizations. The Department of State has long had the ability to impose foreign policy export controls, and This refers to the 1975 Asilomar Conference on recombinant DNA research that led to â Â specified laboratory practices for constructing and handling recombinant DNA (rDNA) mol- ecules and Âorganisms containing them.â Available at http://www.accessexcellence.org/RC/AB/IE/ NIH_ÂRevised_Guidelines.php. Last accessed June 16, 2008. The National Science Advisory Board for Biosecurity was established in 2004 âto provide advice and guidance to the federal government regarding biological research yielding information and technologies with the potential to be misused to pose a biologic threat to public health or national security (i.e., dual use research).â Available at http://www.biosecurityboard.gov/faq.asp#2. Last accessed June 16, 2008. 10Availability as defined in the Export Administration Regulations, part 768.2, states that an item is readily available outside the United States if an item is of âcomparable in quality to an item subject to U.S. national security export controls, and is available-in-fact to a country, from a non- U.S. source, in sufficient quantities to render the U.S. export control of that item or the denial of a license ineffective.â
RECOMMENDATIONS 77 these have always been considered to be entirely separate from national security export controls. As such, they neither require nor are they based on the identification of an immediate, demonstrable threat to U.S. national security for their justification. The Classification System Both the existing Fundamental Research Exemption and the pro- posed Economic Competitiveness Exemption recognize the primacy of the classification system. The current classification system is not a subject of this study. However, as a result of its work, the committee notes that it would be very useful to have a presidential commission review of this system, seeking a substantial overhaul as it affects government funding and control of private sector activity. For the private sector, only a very select set of materials and technologies that could threaten the nationâs capability to function should be controlled or classified. Beyond this, the committee suggests that there be no assertion of types of control other than classification on the conduct or reporting of science and technology development under either the Fundamental Research Exemption or the Economic Competitiveness Exemption. The semi-classification systems of âsensitiveâ information that have previously been known as Sensitive But Unclassified and For Official Use Only also are not a subject of this study.11 The committee notes that these categories are appropriate only to protect information exchanged between government entities and should not be applied to dealings with the private sector other than through government contracts. The government contracting system is not a subject of this study. The government may elect to do classified or restricted research as it deems necessary, and universities or corporations may agree to classificaÂtion restrictions as their own policies dictate.12 In conjunction with its rec- ommendations in this report, the committee suggests that there should be no ex post facto controls on publication of research; if the work has 11On May 9, 2008, the White House released a memorandum on the Designation and ÂSharing of Controlled Unclassified Information (CUI). Available at http://www.whitehouse.gov/news/Â releases/2008/05/20080509-6.html. Last accessed June 16, 2008. 12A memorandum issued in June 2008, by Undersecretary of Defense John J. Young, Jr., states that âDoD will not restrict disclosure of the results of contracted fundamental research, as herein defined, unless the research is classified for reasons of national security, or as otherwise required by statute, regulation, or Executive Order.â This memorandum was prompted largely by the National Academies 2007 report, Science and Security in a Post 9/11 World. Available at http://www.fas. org/sgp/othergov/dod/atl062608.pdf. Last accessed July 21, 2008.
78 BEYOND âFORTRESS AMERICAâ not been classified from the outset, then publication of the work should not be restricted. Recommendation 3 The President should maintain and enhance access to the reservoir of human talent from foreign sources to strengthen the U.S. science and technology base. A.â Streamline the visa process for credentialed short-term visitors in science and technology fields. B.â Extend the duration of stay for science and engineering gradu- ates with advanced degrees. C.â Include expert vouching by qualified U.S. scientists in the non- immigrant visa process for well-known scholars and researchers. D.â Institute skills-based preferential processing with respect to visa applications. Traditionally, the United States had to worry about science and technology flowing out of the country. Under todayâs conditions, the United States must make sure that advanced science and technology will continue to flow into the country. The visa regulations as applied to cre- dentialed foreign scientists should be changed to ensure that the United States. has access to the best talent. Science and engineering degree- holders who prefer, after graduation, to work in the United States, should have ready access to permission for long-term stays. Granting this access for highly trained technical and scientific personnel is an important way of augmenting the workforce. The United States cannot protect U.S. jobs by denying entry to foreign professionals; jobs will simply go elsewhere. It is important to both the national security and to our countryâs economic prosperity to maintain the flow of human talent into the United States. Streamlining the Visa Process The committee recommends the Presidentâs Executive Order require that a non-immigrant visa applicant who is a graduate student, researcher, or professional in any field of science or technology, and whose application is supported by a qualified university, scientific body, or corporation receive a determination on the visa application within
RECOMMENDATIONS 79 30 days.13 This will allow access for credentialed academic researchers to work with U.S.-based colleagues and in U.S.-based programs, and will facilitate work done in U.S. science laboratories. Provision of Automatic Extensions The committee recommends the Presidentâs Executive Order pro- vide a one-year automatic visa extension to international students to remain in the United States to seek employment or acceptance into further advanced study on receipt of advanced degrees in science, tech- nology, engineering, mathematics, or other fields of national need at qualified U.S. institutions.14 If these students are offered jobs by U.S.- based employers and pass security screening measures, they should be provided automatic work permits and expedited residence status. If students are unable to obtain employment within one year, their visas would expire.15 Vouching by Qualified U.S. Scientists The committee recommends that the Presidentâs Executive Order allow qualified U.S. scientists to vouch for the technical credibility and legitimacy of visa applicants who are in the same or a similar field as part of the visa process. A more interactive application review proce- dure would permit those with expertise in the relevant scientific fields 13The average wait time for âstudents and exchange visitorsâ is posted as 15 days. The Depart- ment of State website explains that âProcessing wait time DOES NOT include the time required for additional special clearance or administrative processing. These procedures require additional time. Most special clearances are resolved within 30 days of application. When additional adminis- trative processing is required, the timing will vary based on individual circumstances of each case. Processing wait time also does not include the time required to return the passport to applicants, by either courier services or the local mail system (emphasis in the original).â Many students and exchange visitors seeking to come to the United States for short-term scientific research or for a science-themed conference are precisely those most likely to require âadditional special clearance.â Thus this recommendation seeks to require that which is already common practice. Available at http://travel.state.gov/visa/temp/wait/tempvisitors_wait_result.php?post=Beijing&x=110&y=19. Last accessed July 25, 2008. 14In proposing an automatic visa extension to advanced international graduates who are not yet employed, this recommendation differs from the Optional Practical Training Interim Final Rule Â(released and implemented in April 2008) that would extend the training period from 12 to 29 months for âavailable to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses enrolled in the E-Verify program.â Available at http://www.dhs.gov/xnews/releases/pr_1207334008610.shtm. Last accessed July 25, 2008. 15Rising Above the Gathering Storm, Action C-5.
80 BEYOND âFORTRESS AMERICAâ (and personal knowledge about the expertise of the individual whose application is being reviewed) to aid consular officials in accurately and efficiently determining the existence of a real security threat. Skills-Based Preferential Processing for Visas The committee recommends that the Presidentâs Executive Order institute a new skills-based, preferential processing with respect to visa applications. The visa applications of scientists and engineers should be given priority. Graduate-level education and science and engineering skills should substantially raise an applicantâs chances and priority in obtaining U.S. citizenship.16 16Rising Above the Gathering Storm, Action C-6.