SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2019, Issue No. 45
December 16, 2019

Secrecy News Blog: https://fas.org/blogs/secrecy/

CONFRONTING FOREIGN THREATS TO BASIC RESEARCH

Foreign scientists working in the U.S. are a vital part of the U.S. scientific research enterprise, a new report from the JASON scientific advisory panel said, and this country could hardly do without them. Yet in some cases they pose a challenge to the integrity of U.S. research programs.

"In 2019, eight Americans were awarded Nobel Prizes -- half were foreign born," the JASON report said. "Today, foreign nationals account for the majority of graduate students in many technology fields, including electrical, civil, mechanical, industrial, chemical, and petroleum engineering. They also dominate in fields including computer science and economics, and some universities' graduate programs likely could not maintain their high level of excellence without foreign students."

But some foreign scientists -- often, but not only, from China -- violate U.S. norms of scientific ethics by improperly sharing sensitive research information and technology without authorization.

"Anecdotes abound of foreign scholars in research groups passing on sensitive information, and some JASON members had experienced this in their own research groups," the report said. On the other hand, "some examples of what has been interpreted by the intelligence community and law enforcement as theft by foreign researchers actually appears to be the collegial sharing of academic work."

Although the magnitude of unambiguously unethical activity is not clearly known, "there are enough verified instances to warrant concern. . . These actions pose a threat to the U.S. fundamental research enterprise," the JASONs said. See Fundamental Research Security, December 2019.

In this case, however, the proper response is not greater secrecy but greater transparency, the JASON report said.

"It is neither feasible nor desirable to control areas of fundamental research beyond the mechanisms put in place by [the 1985 National Security Decision Directive] NSDD-189" which held that unclassified basic scientific research should be otherwise unrestricted. "It is not possible to draw boundaries around broad fields of fundamental research and define what is included and what is excluded (government controlled) in that discipline of inquiry," the JASONs said.

Instead, they recommended, the concept of research integrity needs to be expanded to require full disclosure of all affiliations and personal commitments -- such as ties to foreign military or security organizations.

"A failure to make the proper disclosure must then be treated as a violation of research integrity and should be investigated and adjudicated" just like plagiarism or falsification of data. Increased clarity and explicitness regarding the boundaries of permissible sharing of unpublished research information is also needed.

Actual theft or espionage is of course punishable by law. But as a general principle, foreign scientists who immigrate to the United States should be treated like any other citizen, the JASONs wrote, and they "should be judged on their personal actions and not by profiling based on the actions of the government and political institutions of their home country."

A common understanding of the foreign threat to fundamental research has been hampered by secrecy and miscommunication between academic institutions and U.S. intelligence officials, the JASONs found.

Intelligence briefings "have been met with disbelief and derision" by some academic audiences who doubted the legitimacy of classification barriers to full disclosure. The IC briefers in turn "may feel distrusted and dismissed by those they believe they are trying to help."

The JASONs recommended that the National Science Foundation facilitate more effective communications between the academic community and intelligence and law enforcement agencies, "including encouraging the declassification of information related to foreign influence in fundamental research."

* * *

Unlike the JASONs, a recent Senate staff report suggested that more secrecy might be the answer to foreign misappropriation of U.S. research activities. "The administration should consider updating NSDD-189 and implement additional, limited restrictions on U.S. government funded fundamental research." See Threats to the U.S. Research Enterprise: China's Talent Recruitment Plans, staff report, Senate Committee on Homeland Security and Governmental Affairs, November 22, 2019.

The JASONs specifically rejected this approach, arguing that it was not at all practical and would in fact be counterproductive.

* * *

The congressional intelligence committees have recognized the disconnect between the IC and academia that was described by the JASONs.

The committees are "aware that academia is not always kept apprised by the interagency of a complete picture of potential activities and threats in the research community, such as improper technology transfer, intellectual property theft, and cyber-attacks directly attributed to nation-state governments," said a new statement on the FY 2018, 2019 and 2020 intelligence authorization act which was recently adopted in the FY2020 defense authorization bill.

The new intelligence legislation therefore "include measures to promote increased information sharing across the interagency and with academia," the committee statement said.

Among those measures is a requirement for a new unclassified "report listing Chinese and Russian academic institutions that have a history of improper technology transfer, intellectual property theft, cyber espionage, or operate under the direction of their respective armed forces or intelligence agencies."

CARTER PAGE: CORRUPTION ERODES SECRECY AUTHORITY

Corruption in the executive branch diminishes the ability of federal agencies to preserve secrecy, wrote a then-21 year old named Carter Page in 1993 when he was a midshipman at the U.S. Naval Academy. See "Balancing Congressional Needs for Classified Information: A Case Study of the Strategic Defense Initiative" by Carter W. Page, May 17, 1993.

More than two and a half decades later, Page's own experience as an improper target of government surveillance tends to prove his thesis.

A series of FBI applications under the Foreign Intelligence Surveillance Act (FISA) identified Page, a former Trump adviser who had contacts with Russian government officials, as a purported agent of a foreign power. Those FBI applications were declassified and disclosed last year -- the first time such documents had ever been made public -- following indications that they were based on erroneous claims. Corruption, as Page had written, led to an erosion of longstanding secrecy practices.

Last week, the Department of Justice Inspector General confirmed that the Page surveillance applications were indeed defective.

"We identified at least 17 significant errors or omissions in the Carter Page FISA applications," wrote Inspector General Michael Horowitz. The omissions included exculpatory information concerning Page that had been improperly altered by an FBI attorney.

The fact that "so many basic and fundamental errors were made" in the Carter Page case has called into question the management of the entire FISA process, Inspector General Horowitz wrote, casting a new spotlight on FISA policy and practice.

"Secrecy is an important element of power," wrote the young midshipman Page in his 1993 report on congressional access to classified information. Official secrecy practices, he contended, are determined more by political currents than through rational or legal argumentation.

"While the sheer forces of law may be felt to some extent within this struggle, the final outcome is most often one which is based on politics," he wrote.

"Corruption may decrease an executive's claim to information," he argued, particularly since "Congress is much less likely to request secret information from federal agencies which have proven themselves to run in a veracious [i.e. truthful] manner."

Mr. Page said via email that his 1993 Naval Academy report was "inspired in significant part by prior work with Senator [Daniel Patrick] Moynihan," whom he had served as an aide.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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