University vulnerable
to pitfalls of secret 
experiments

It was 37 years ago that James Oshita and William Fraticelli were regularly drenched with the cancer-causing Agent Orange on the Kauai Agriculture Research Station.

They performed the core part of the University of Hawaii's contract with the U.S. Army to test the effectiveness of the herbicide laden with dioxin, one of deadliest of chemicals, that was then being sprayed in South Vietnam to defoliate its wartime jungles.

Their saga and the Agent Orange experiment are now being recounted amid the controversial question of whether Hawaii's only public university should enter into a new kind of contract for military research, this time with the U.S. Navy, specifically to establish a University Affiliated Research Center, to which the Board of Regents has already given its preliminary approval. It's a watershed, which-way question for UH -- and, as UH goes, so goes the state.

Oshita and Fraticelli marked their bulldozers with flags to serve as targets and stayed there while the planes swooped down to spray the defoliants. "When the plane came to spray, someone had to guide him," Oshita told a reporter in a Page 1 report in the campus newspaper, Ka Leo O Hawaii, on Feb. 3, 1986. "We were the ones."

Testing was done without warning UH employees or the nearby Kapaa community even though in 1962, just months before being assassinated, President Kennedy was told that Agent Orange could cause adverse health effects, U.S. court documents show. And a 1968 test report written by four UH agronomists said that on Kauai Agent Orange, alone or combined with Agent Pink, Purple or Blue, was effective and "obviously may also be lethal."

When the testing finished in 1968, five 55-gallon steel drums and a dozen gallon cans partially filled with the toxic chemicals were buried on a hilltop overlooking a reservoir. There they remained until the mid-1980s when the Ka Leo reporter's questions led to their being excavated, supposedly for shipment to a licensed hazardous waste facility. They left behind levels of dioxin in some soil samples of more than five times normal cleanup standards.

The barrels were then placed in a Matson shipping container. There, instead of being shipped out of state as promised, they sat for another decade. Then, in 1997, the U.S. Environmental Protection Agency and the state Department of Health discovered that UH had failed to dispose properly of the hazardous materials and included this infraction along with a Big Island one in a $1.8 million fine against the institution. In April 2000, the barrels were finally shipped out of state.

Oshita and Fraticelli have since died. A year after his Agent Orange work, Oshita was diagnosed with liver dysfunction, bladder cancer, diabetes, chronic hepatitis and a severe skin disease called chloracne. Fraticelli died in April 1981 from lung and kidney cancer; he also had bladder cancer and a brain tumor, court documents indicate.

Since 1984, with the settlement of a $180 million class- action lawsuit, 10,000-plus Vietnam veterans receive disability benefits related to Agent Orange, which has been linked to various cancers, diabetes and birth defects. Earlier this month, a federal judge, citing insufficient research data, dismissed a case filed on behalf of 4 million-plus Vietnamese claiming that Agent Orange had caused their ailments.

The legacy of the Agent Orange experiment and its aftermath exemplifies how UH was duped into conducting military research that the U.S. government knew could create adverse health effects, how the costs and risks of such research were latent for years and how UH demonstrated decades-long disregard for environmental and health hazards.

UH's Agent Orange experiment was not secret. The student journalist found a thick report about it in Hamilton Library. But some of the Navy's research now being debated at UH would be secret, a condition that the Faculty Senate on the Manoa campus voted down in terms of withholding publication of scholarly discoveries.

But even the Navy's unclassified, non-secret work within the UARC has raised two broad concerns among faculty: the anti-business restrictions governing privileged information accessible to researchers, and murky legal issues.

Those favoring the Navy contract note that it proposes a ceiling for UH-M over five years, the normal duration of a UARC, of a sum of up to $50 million. This amount of about $10 million annually is small compared to the $54 million received by UH this fiscal year alone from Pentagon research and is but a fraction of the $160 million the Penn State University UARC received in one year.

Another advantage cited on the Manoa chancellor's Web site is "our faculty will not have to write specific proposals for funding." Instead, faculty will pick and choose -- or opt out of -- work on "task orders" from the Navy or other Pentagon sponsors. Others argue, however, that working only on this military-initiated to-do list will squelch faculty initiative and innovation.

Several faculty have noted that the "research" performed by the UARC through Navy "task orders" is distinctly different from the faculty-directed research that UH researchers currently pursue in an open academic environment. UARC activities must be aligned with the Navy's war-fighting mission through the approved core competencies, and because the UARC acts as a trusted agent of the government, are also subject to extremely restrictive regulations managing conflict of interest.

The UARC would give rise to a whole new bureaucracy, according to a posting on the Manoa chancellor's Web site (see box on F5). The UARC would be an organized research unit that reported to the vice chancellor for research and graduate education and would be managed by an executive director to be selected from a national search. A director would head each of UH's four research specialities in ocean science; astronomy; advanced electro-optics and sensing; and senors, communications and information technology. Another director of business and admini- stration would oversee UARC operations. These administrators would work in leased space at the Manoa Innovation Center.

Unclassified research would be conducted on the Manoa campus but classified research would be performed on military facilities in the state or on the mainland. More bureaucracy will be needed to screen personnel for security clearances required for classified research.

Instead of providing an economic stimulus for the state, some faculty delving into operations of the proposed UARC find a restrictive, anti-business environment.

In scanning conflict-of-interest and other regulations, they found in effect a firewall circumscribes the UARC. Those accepting UARC funding are barred from working with local industry in ventures outside the UARC or in licensing their intellectual property in work outside the UARC in areas in which they may have gained information giving them a competitive advantage, regardless of whether that information is classified.

Researchers accepting UARC funding also are barred from submitting new proposals, entering collaborative relationships, undertaking consult- ing work or continuing work outside the UARC in their specialties that might benefit from their access to information within the UARC that is generally unavailable to the public. Moreover, they found, these restrictions will continue for three years after they leave the UARC.

None of these restrictions is explained on the chancellor's Web posting, although Vassilis Syrmos, technical officer for the UARC proposal, spoke at length in an interview published March 2 in Ka Leo that certain conflict-of-interest restrictions would apply to those who accept UARC funding.

"Trying to predict the effect of the UARC on potential licensing income is almost fruitless," Richard F. Cox Jr. of UH's Office of Technology Transfer and Economic Development said in an e-mail last week. He estimated UH would bring in about $900,000 in licensing income for the year ending June 30.

Others raise murky legal issues. Some question whether the Navy met the legal requirements of open announcement in approving the UARC at UH-M and thus in providing adequately fair competition to other qualified universities. For example, the Army, NASA and the Department of Homeland Security have all recently established new UARCs and federal research centers through open announcements and national competition. And the same statutory authority cited to establish UH-M's UARC was found as insufficient justification for awarding a UARC contract to Johns Hopkins University by NASA without full and open competition, that agency's inspector general found.

Such broad agency announcements serve not only a legal requirement. They also contain critical information on the purpose of the UARC, a description of the mission and type of research, the constraints and restrictions on qualified and successful applicants, and important evaluation and selection criteria to be included in the proposal. Thus, the UH-M UARC omitted critical information on the actual faculty and staff who would perform the research and important industrial affiliations that is normally required in such proposals. Without such a broad agency announcement for the Navy UARC, neither the public nor the UH faculty have the guidance needed to determine exactly what their participation would involve, what they will be asked to do for the Navy or what the Navy will be doing, perhaps near their own neighborhood.

In addition, the Navy is conducting a potentially criminal investigation into allegations of mismanagement of classified military contracts by UH and its affiliated Research Corporation, Ka Leo O Hawaii reported on March 2.

Mismanagement of federally funded research and misstatements in applying for that funding is viewed seriously. A federal judge took the unusual step of sentencing to three months in jail a professor of electrical engineering at the University of Wisconsin at Madison and fining him $10,000 for lying on a grant application he made to the National Science Foundation.

In handing down that sentence, as reported by the Chronicle of Higher Education on Jan. 25, 1999, U.S. Magistrate Judge Stephen Crocker said, "Within the academic community, those who follow the rules must be assured they are not chumps, fools, or suckers."

As important as these issues are, many faculty have expressed as their greatest concern the absence of a forum for the community and campus and the general lack of faculty consultation to examine these questions in detail. In a meeting with faculty on March 16, Chancellor Peter Englert apologized "for not having come forward or having made this particular presentation a little bit sooner." But the stipulation that full consultation take place with concerned stakeholders was directed by the Board of Regents in its November 2004 meeting, and efforts to establish a UARC at UH-M date from September 2002. Given the history surrounding Agent Orange, many faculty feel that UH should be very careful to examine all such questions with complete openness and good faith