The Obama Administration has carved out a loophole in the recent congressional ban on scientific interactions with China that would permit most activities between the two countries to continue. But that interpretation doesn't sit well with Republicans in the House of Representatives who drafted the language, one of whom said today that ignoring the ban could imperil funding for NASA or other science agencies.
The ban is part of the 2011 budget approved last month to avert a government shutdown. It was crafted by Representative Frank Wolf (R-VA), a fierce critic of China who chairs a House spending committee that oversees several science agencies. The ban says that no funds can be used by NASA or the White House Office of Science and Technology Policy (OSTP) "to develop, design, plan, promulgate, implement or execute a bilateral policy, program, order, or contract of any kind to participate, collaborate, or coordinate bilaterally in any way with China or any Chinese-owned company." It also prevents any NASA facility from hosting "official Chinese visitors."
Appearing today before that panel to defend the Administration's 2012 budget request for science, presidential advisor John Holdren told Wolf that, in effect, the ban doesn't apply to the president's ability to conduct foreign policy. That authority, Holdren explained, extends to a bilateral agreement on scientific cooperation that Holdren and China's science minister signed in January that builds upon a 1979 pact that has spawned activities between many U.S. agencies and their Chinese counterparts.
Wolf asked Holdren for his interpretation of the budget language. "It is our intent to live within the terms of that prohibition insofar as doing so is consistent with my responsibilities to execute the president's constitutional authority," said Holdren. "I have been instructed after appropriate consultation ... that the prohibition should not be read as prohibiting interactions that are part of the president's constitutional authority to conduct negotiations. At the same time, there obviously are a variety of aspects of that prohibition that very much apply to OSTP, and we will be looking at that on a case-by-case basis."
Wolf initially seemed satisfied with that answer. "Could you keep the committee informed, on a case-by-case basis, anytime you are doing anything at all with China when you think that it might in conflict with that language?" he asked Holdren after hearing that explanation. "We'd be happy to do that," Holdren replied.
But that would not be the last word on the subject. Panel members returned time and again to the issue. One notable exchange involved Representative John Culberson (R-TX), who, after a whispered conversation with Wolf, began to grill Holdren about what he viewed as the Administration's deliberate attempt to get around the language:
I note in your response to the chairman that the administration has decided that negotiations the president conducts are an exemption to the policy adopted by Congress… The president just signed into law an absolute, iron-clad, and unambiguous requirement that none of the funds be made available to the administration may be used by NASA or your office… [to carry out] a bilateral policy with China or any Chinese-owned company. It's not ambiguous or confusing. But you've just told us that you have embarked on a policy to evade and avoid this very specific requirement.
Holdren tried to deflect Culberson's attack. "You can argue that point with me until the cows come home," he replied. "But I'm not a lawyer, and I will lose." But Culberson wasn't ready to drop it. In fact, he then warned Holdren about the possibly dire consequences flowing from the Administration's interpretation of the language:
You need to remember that Congress enacts these laws and it's the chief executive's job to enforce them. ... Now if anyone in your office, or at NASA, participates or collaborates or coordinates in any way with China, you're in violation of the statute. And frankly, you're endangering your funding and NASA's funding ... and it's up to the chairman and this committee to decide how to enforce the law or what remedies are available. ... You have a huge problem on your hands.
The issue was by far the most contentious topic covered in the 2½ hour hearing, which also examined science education, space exploration, environmental and energy policy, and overall funding trends. And before it ended, Holdren had conceded that some planned bilateral activities with China might fall outside the exemption. "My assumption is that there will be some activities that will be precluded," he told ScienceInsider after the hearing. "The question is what we can and cannot do. And as I told the chairman, we'll be reviewing them on a case-by-case basis."