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November 6, 2011

The US-China Space Program Exchange Is Illegal? Oh My! (Guest Post)

By Stan Abrams

You may recall a brief comment I made some time ago about U.S. Congressman Frank Wolf and his misguided attempt to stop all science and technology cooperation between China and the U.S., in particular any contact with representatives of the PRC space program:
Seriously bad idea, not to mention paranoid. The provision would also prohibit NASA from hosting Chinese government visitors, which seems way over the top.
Look, I’m a huge fan of international science and technology cooperation. The history is pretty clear that what is now called “science diplomacy” has been remarkably effective. During the Cold War, S&T programs not only kept the dialogue going between the US and USSR during some tough times, but were also at the forefront of the thawing that occurred during the period in the 1970s known as detente.
Well, unfortunately Wolf got his way in the end, and the restriction was stuck onto a budget resolution and ultimately signed by Obama. Score one for the Cold Warriors and paranoids in the U.S. government who think that shutting off dialogue with other countries is a great policy solution. Hey, it worked really well in denying North Korea nuclear weapons, didn’t it?

Anyway, what was the response from the U.S. government? Obama’s Office of Science and Technology Policy (OSTP) went ahead with U.S.-China science dialogue. The director of the office was recently hauled in front of a House committee to answer for his “crimes.”
Last month, the US Government Accountability Office determined that OSTP violated a statute that prohibits OSTP and US space agency NASA from using federal funds for certain bilateral engagements with China.
OSTP director John Holdren testified that he was told by the Justice Department that the office’s activities fell under the president’s executive authority to conduct foreign diplomacy, and that the statute therefore did not apply to OSTP.
There are three issues here. First, there is a very significant legal question regarding the power of the Executive Branch to determine whether a law is unconstitutional or not. In other words, deciding whether to follow the law as enacted by the country’s Legislative Branch. The New York Times has a good piece that covers this issue:
While the power of the department’s Office of Legal Counsel to nullify statutes has led to fierce debate in recent years, the highest-profile disputes have involved national security issues like surveillance, where significant portions of the material are classified.
By contrast, the executive branch’s writings in the current dispute are public. They illustrate how one president’s assertion of executive power — sometimes in memorandums that are secret at the time — establishes a “precedent” for his successors to develop by applying it to new circumstances. Each repetition cements and expands the claim without a court ever weighing in.
In the present case, the Obama Justice Department issued an opinion that the rule pushed by Frank Wolf was unconstitutional and that the head of the OSTP could disregard it. This was the reason that Holdren was raked over the coals by Wolf and others during that hearing.

I’ve got mixed feelings about this issue. On the one hand, I certainly disagree with the underlying legislation here. It’s absolutely ridiculous and makes Wolf and the entire U.S. government look like reactionary idiots that have forgotten their history.

On the other hand, I recall what happened when George Bush disregarded a lot of other laws, mostly relating to espionage and military matters (waterboarding, anyone?). Remembering that scary time, I would much prefer that U.S. Presidents follow the law and not find convenient legal excuses for disregarding it.

Second, there is the rule itself, which says that no money can be spent by OSTP on bilateral (U.S.-China) engagement. Does this encroach upon President Obama’s ability to conduct foreign policy? I’m no constitutional scholar, but it probably doesn’t. Cutting off money like that certainly does meddle in the U.S.-China relationship, but unfortunately Congress does this kind of thing all the time, including frequent threats to cut off funding for the many U.S. military adventures.

I think Congress may have the power to do this, although they really shouldn’t have in this case.
Third, why is this rule so awful? Well, if Obama’s folks followed it, not only would it mean yet another embarrassing bilateral misstep, but it’s extremely shortsighted. The impetus for this is a fear that bilateral exchanges with OSTP and NASA will lead to dangerous, unintended technology transfer to China.

This is rather condescending to the professionals at NASA and OSTP, who have decades of experience in how to handle sensitive technology when it comes to foreign governments and are perfectly aware of intellectual property infringement, government-backed espionage, and other dangers. These guys are the experts; they know more than Frank Wolf about technology transfer and how to compartmentalize information.

I also wonder if Wolf realizes that if current trends continue, perhaps 50 years from now, it might be the U.S. that is desperate to open up these sorts of channels with China, which is spending a lot more on R&D and is moving forward rapidly with its own space program. You’d think that this week’s events, which included an orbital docking between the Shenzhou spacecraft and the Tiangong lab module, would be a wake-up call to U.S. lawmakers, but apparently they are busy with other priorities.

I get the feeling that even after China’s space station has been completed, the U.S. will still be talking about cutting taxes and closing down government agencies, all the while bemoaning the fate of American global competitiveness.

About The Author - Stan Abrams is a Beijing-based IP/IT lawyer and law professor. Stan has an M.A. from Johns Hopkins in International Relations, a J.D. from Boston College Law School, and a B.A. from Pomona College.  Stan maintains a blog at China Hearsay(EconMatters author archive here)

The views and opinions expressed herein are the author's own, and do not necessarily reflect those of EconMatters.

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