By Shaun Waterman

Wednesday, November 2, 2011

Obama administration officials broke the law by holding science and technology exchanges with Beijing contrary to legislation banning such cooperation, members of Congress and congressional auditors said Wednesday.

John Holdren, director of the White House Office of Science and Technology Policy (OSTP) “defied the legislation,” Rep. Frank R. Wolf, Virginia Republican and sponsor of the law, told a hearing of the House Foreign Affairs subcommittee on oversight and investigations.

Both OSTP and the National Aeronautics and Space Administration were named in a section that Mr. Wolf added to the omnibus appropriations act passed by Congress in April to fund the government.

The section blocked the agencies from spending any money on bilateral meetings or exchanges that boost science and technology cooperation with Beijing or Chinese companies.

“OSTP violated [the] provision,” said Thomas H. Armstrong, a lawyer from the Government Accountability Office, Congress’ investigation and audit arm.

Mr. Holdren said at the hearing that he sought legal guidance from the Department of Justice “because of the importance of OSTP’s role in diplomatic relations with China” and the “value to the country” of the exchanges and visits the agency was conducting.

The Justice advice was “very clear in its language that the section was unconstitutional” and that his agency could continue to go about its bilateral business “as agents designated by the president for the conduct of diplomatic relations with China” – who were not subject to the legislative branch – Mr. Holdren said.

“Their opinion is binding on me,” Mr. Holdren said of the Justice Department lawyers. “It represents the view of the administration.”

The GAO’s Mr. Armstrong said the law was passed by both chambers of Congress and signed by the president – without any accompanying statement that successive administrations have used to indicate reservations about aspects of legislation.

That meant the law was “entitled to a heavy presumption in favor of constitutionality,” he said, and, “absent a judicial opinion from a federal court of jurisdiction,” ought to be enforced.

He noted, however, that enforcement would be a job for the Justice Department.

Subcommittee Chairman Rep. Dana Rohrabacher, California Republican, said there was a “major constitutional issue to be resolved,” about the extent to which Congress could use the purse strings to dictate policy, especially in the arena of foreign affairs where courts and lawmakers traditionally have given a great deal of deference to the executive branch.

Mr. Rohrabacher criticized the administration’s policy on science and technology cooperation with China.

“Any efforts on our part to reach out to the Chinese communists, to engage them on matters of technology is, quite frankly, not just naive, it is dangerous,” Mr. Rohrabacher said.

“When personnel from either of these organizations travel to the People’s Republic of China, collaborate on projects, share data, or attend conferences … it is a serious national security problem.”

He cited a history of Chinese efforts to steal U.S. technology

Mr. Holdren and NASA chief Charles Bolden Jr. defended the administration’s record, saying the benefits of technological and scientific collaboration with China outweighed the risks.

“We have guarded our nation’s secrets,” Mr. Bolden said.

Cooperation with China is “clearly in the U.S. interest,” argued the ranking member of the subcommittee, Rep. Russ Carnahan, Missouri Democrat.

At such a “critical time for the nation’s space exploration plans,” Mr. Bolden added, “having the flexibility to enter into these partnerships [with other countries, including China] has been key” to U.S. leadership in space.

Bipartisan support for cooperation with China “has spanned many administrations,” he said.

“I believe that some level of cooperation with China … can be … in the best interests of both nations,” he said.

Such cooperation also “strengthens our hand in getting China to change those aspects of its conduct that we oppose,” said Mr. Holdren, citing human rights and economic issues.

He said the Innovation Dialogue with Beijing – one of the initiatives under fire – had helped “roll back aspects of Chinese innovation policy that discriminated against American businesses.”

“American businesses are very grateful,” Mr. Holdren said.

He added that cooperation on disease and other biological reporting issues had “enhanced our capability to deal with infectious diseases” and invasive pests originating in China.