Editors' note: The following is excerpted from an op-ed that appeared in the August 6, 1997, issue of the Washington Post.
History is replete with instances of how human progress and the process of discovery have been stifled by the imposition of political, religious, or ideological beliefs on independent scientific inquiry and exploration. Our nation now threatens to provide the latest example of such unfortunate interference as the result of two recent appellate court rulings involving the National Academy of Sciences.
Science Panels Now Subject to the Act
In a decision issued May 6, the US Court of Appeals for the District of Columbia affirmed its earlier ruling that panels formed by the Academy of Sciences to study difficult and often controversial issues for federal agencies or Congress are subject to the 1972 Federal Advisory Committee Act (FACA). This law, intended to control government-appointed advisory committees, required that such groups be closely managed by their sponsoring agencies and that they provide public access to their deliberations and working documents.
There are two fundamental problems with applying this law to the Academy of Sciences and to its affiliated organizations-the National Academy of Engineering, the Institute of Medicine, and the National Research Council.
First, the court's ruling contravenes the explicit statement of legislative intent in adopting the Advisory Committee Act. Responding to a colleague's question during floor debate on the measure, the act's sponsor, Representative Chet Holifield of California, stated: "The act does not apply to persons or organizations that have contractual relationships with federal agencies nor to advisory committees not directly established by, or for, such agencies. As the gentleman knows, the National Academy of Sciences was founded by Congress and, therefore, it comes under that category."
Even worse than this obvious case of judicial revisionism is the chilling effect that imposition of the act's provisions would have on the ability of the academy complex to provide unbiased, high-quality scientific advice to Congress and federal agencies such as the Departments of Commerce, Defense, Energy, Health and Human Services, and Transportation.
Potentially Far-reaching Effects
After the Challenger accident in 1986, the presidential commission chaired by former Secretary of State William Rogers sought out the National Research Council to oversee redesign of the space shuttle's solid rocket boosters, recognizing the importance of keeping this vital endeavor independent of the political maelstrom in which NASA and its contractors were then embroiled. A committee of experts convened by the council met 99 times over 30 months, focusing from the outset on development of objective, quality standards for the boosters' redesign, and the shuttle's safe return to flight.
This effort would not have been possible under the act, since the act's meeting notice and agenda publication requirements alone would have prevented the panel from meeting as frequently or completing its work as quickly. Moreover, the act's openmeeting requirements would have subjected the panel's deliberations to contemporaneous public commentary and the same sort of nonproductive blame-laying then so prevalent.
Similarly, the Institute of Medicine's assessment of the integrity of the nation's blood supply during the early stages of the AIDS epidemic might not have produced important recommendations for dealing with future threats to blood safety had it been subject to control by any of the federal agencies whose actions were reviewed and, in some cases, criticized.
I believe in open government and in the premise that-with few exceptions such as those involving national security matters-decisions should he made with an opportunity for public comment, discussion, debate, and scrutiny of the end results.
So why am I critical of the appellate court's ruling, which would seem to make the process of government even more open and accessible?
Fact-finding vs. Decision-making
The answer lies in the difference between fact-finding and decisionmaking-between review of a final product and oversight of a work in process.
The panels of the academy complex do not make decisions on behalf of Congress, the executive branch, or the independent agencies of our federal government-all of which provide ample opportunity for the airing of political and ideological views as they formulate public policy. Rather, the academy panels perform research so those empowered to make decisions can do so with the benefit of factual information and the best scientific expertise our nation has to offer-a process that demands both independence and objectivity. Further, all academy reports are made publicboth in print and on the Web. Even when national security imperatives require classification of a report, an unclassified summary always is issued.
The academy has announced its intention to appeal the district court's ruling to the US Supreme Court. An even more direct and expeditious remedy would be for the current Congress to reinforce legislative history-not rewrite it, as the courts seem inclined to do-by specifically exempting the academy complex from the provisions of the Federal Advisory Committee Act.
[Author Affiliation]
by Norman R Augustine
Chairman
Lockheed Martin Corporation
Bethesda, Maryland
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