Nine ways to undermine Virginia AG Cuccinelli’s McCarthyite demand for scientists’ communication

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Virginia Attorney General Ken Cuccinelli’s effort to subpoena Prof. Michael Mann’s documents and e-mail correspondence with 39 other scientists would establish a precedent for essentially destroying the ability of university faculty to correspond with colleagues with any sense of confidentiality—a terrible precedent if it is allowed to succeed. To oppose Cuccinelli’s action with pushback on multiple fronts, we can think of at least nine kinds of action that can be taken – by Prof. Mann, by the University of Virginia, by the science community, by the media, and by others. Fortunately, a number of such appropriate actions are already being taken or are under consideration.

Post by Rick Piltz

Related CSW posts:

Free the Cuccinelli 40: Virginia AG demands e-mails of Michael Mann and 39 other scientists (May 5)

Virginia’s combative right-wing state Attorney General Ken Cuccinelli has issued a “Civil Investigative Demand” calling on the University of Virginia to turn over a large quantity of material about climate scientist Michael Mann, who was at the University during 1999-2005. Among the documents he is demanding are all e-mail and other communications to or from Mann and 39 other scientists, or referencing them. This latest McCarthyite inquisition, by yet another agent of the global warming denial machine, is taking fire even from climate ‘skeptics’ who are no friends of Mann. It sends a chilling message about academic freedom and the freedom of scientists and others to communicate with each other without fear that their communications will be published. (See full post for details)

University petitions court to quash Cuccinelli subpoena of climate scientist Michael Mann (May 28)

The University of Virginia has petitioned a state court to “set aside” Attorney General Cuccinelli’s not-so-civil Civil Investigative Demand that it turn over a mass of former UVa Prof. Michael Mann’s documents and e-mail correspondence with 39 other scientists. The university’s action shows some backbone and exemplifies the pushback we should see in responding to political witch hunts aimed at the science community. The petition defends academic freedom and indicates how Cuccinelli’s demands fail to meet the basic requirements of state law. (See full post for details)

What should be done in response to this demand?

Here’s an example of advice that I believe is not helpful and best disregarded, from would-be ‘honest broker’ Roger Pielke Jr. at the University of Colorado:

The attorney general’s “investigation” is a cheap publicity stunt hoping to uncover something of political value. It should serve as a warning to everyone in the academic community who works for state universities or receives public funding for their research (one of which most everyone in the academic community falls under)—your entire life’s work is subject to public scrutiny at any time. This is just a fact, no point in complaining about it….

What should Mann do? He should respond to the request for information as quickly as possible. Resisting or stonewalling is simply not an option and will fuel suspicion that something is being hidden. If, as I have surmised, there is nothing to be found in his files other than the occasional embarassing private correspondence and evidence of sloppy work, he should explore every opportunity to sue the state of Virginia to the extent possible by law. If he takes these actions, he’ll have my full support.

(Full text of Roger’s post here)

Roger takes a critical shot at Cuccinelli, but concludes by essentially taking the political situation as given and putting the onus on Mann (and presumably any other academics who ever find themselves in an analogous position) to capitulate without a fight in order to demonstrate that he has nothing to hide. Only by doing so will he have Roger’s “full support.” (Otherwise, will Roger regard “suspicion” as legitimate?)

In addition, he frames the issue as being essentially between Cuccinelli and Mann, without noting even the role of the University of Virginia, the actual recipient of Cuccinelli’s subpoena. He fails to recognize that Cuccinelli’s action, as one more element of the current right-wing political war on climate science, sends a chilling signal—and not just to climate scientists.  This issue should be framed in terms of a much-expanded cast of characters who have an interest in the outcome.

I am particularly concerned with Cuccinelli’s intention to establish a precedent for essentially destroying the ability of university faculty to correspond with colleagues with any sense of confidentiality. This effort to grab and publicize the e-mail communications between Mann and 39 other named scientists seems a terrible precedent if it is allowed to stand. The crime of the ‘climategate’ theft of e-mails from the East Anglia Climatic Research Unit would be enshrined as a matter of formal government practice. 

For this reason if for no other, I believe Cuccinelli’s action should be actively opposed, with pushback on multiple fronts.  I can think of at least nine possible actions that can be taken – by Prof. Mann, by the University of Virginia, by the science community, by the media, and by others. Fortunately, a number of such appropriate actions are already being taken or are under consideration.

For example:

1.  Michael Mann, through legal counsel, can explore options to encourage the University of Virginia to fight the Cuccinelli subpoena.

I believe it would do a disservice to the academic community if Mann, as the person on the hot seat this time, “respond[ed] to the request for information as quickly as possible” without exploring other options.  This is not about the canard, so popular with the global warming denial machine these days, of “having something to hide.” Resisting is very much a legitimate option; seeking to discredit Cuccinelli’s actions in this case is very much a desirable option.  Delaying a response and exploring options gives the opposition to the war on climate science time to mobilize and publicize this case and inflict as much damage on Cuccinelli’s position as possible.

2.  The University of Virginia can explore its legal options for fighting the subpoena and should seek to defend university faculty by resisting Cuccinelli’s demands using any appropriate legal means.

For one thing, If UVA doesn’t stand up for its faculty in defending against a blatantly political assault such as we are witnessing here, what message does that send? How will it be seen by academics elsewhere who might be considering taking a position at UVA?

It appears that UVA, which has until May 27 to come up with a response, is taking a serious look at its options. The Washington Post Virginia politics blog reported on May 14:

U.-Va. hires legal counsel as it prepares for possible fight over Cuccinelli subpoena

The University of Virginia has hired the big law firm Hogan Lovells to help the school evaluate its options in responding to a civil subpoena from the state attorney general seeking documents related to the work of a former professor. It’s the strongest indication yet that the school is seriously considering fighting the subpoena in court, as various academic groups have urged.

“The University and its Board of Visitors believe it is important to respond to this [civil information demand],” said John O. Wynne, the Rector of the university, in his first statement on the issue. “Research universities must defend the privilege of academic freedom in the creation of new knowledge. Hogan Lovells will help us to explore the appropriate options for a response.”

The university has until May 27 to decide whether to petition a court to intervene….

Dealing with the legal issues is tricky for the university’s own general counsel’s office, because its members are formally employees of the attorney general’s office.

In the university’s most lengthy statement to date on the issue, U.Va. president John T. Casteen III referred to a statement issued by the faculty senate criticizing Cuccinelli’s Civil Investigative Demand as an attack on academic freedom. …

3.  University of Virginia faculty can rally to Mann’s defense with a strong statement on academic freedom and a condemnation of Cuccinelli’s action.

Thus, a May 5 Position Statement on Attorney General’s Investigation of Dr. Michael Mann by the University of Virginia Faculty Senate Executive Council includes the following:

…[S]tatements attributed to the Attorney General that were published in the Washington Post on 4 May 2010 (posted at
http://www.washingtonpost.com/wp-dyn/content/article/2010/05/03/AR2010050304139.html) coupled with the unusual and public nature of this action strongly suggest that the investigation is motivated primarily by differences of opinion regarding the scientific basis for current understanding of climate change. Other groups including the Union of Concerned Scientists (posted at http://www.ucsusa.org/news/press_release/va-attorney-general-0382.html) and many individual scientists around the world have expressed concerns similar to ours regarding the Attorney General’s actions.

Dr. Mann is an internationally respected and highly cited climate scientist. The funding he received for his research resulted from impartial, stringent peer review by respected independent scientists under the auspices of national scientific research organizations. His research findings, including many of those involved in this investigation, have been reported in leading scientific journals, which are themselves subject to additional exacting review by the scientific community prior to publication. Dr. Mann’s research findings were reported in the 2007 assessment by the United Nations (UN) Intergovernmental Panel on Climate Change (IPCC, posted at http://www.ipcc.ch/). Prior to publication, this comprehensive assessment was reviewed by hundreds of the world’s leading climate researchers representing a broad range of scientific opinion. Before its release, the assessment was also reviewed and approved by all UN member nations, including the United States.

We maintain that peer review by the scientific community is the appropriate means by which to identify error in the generation, presentation and interpretation of scientific data. The Attorney General’s use of his power to issue a CID under the provisions of Virginia’s FATA is an inappropriate way to engage with the process of scientific inquiry. His action and the potential threat of legal prosecution of scientific endeavor that has satisfied peer-review standards send a chilling message to scientists engaged in basic research involving Earth’s climate and indeed to scholars in any discipline. Such actions directly threaten academic freedom and, thus, our ability to generate the knowledge upon which informed public policy relies.

4.  Scientists and academics can demand that Cuccinelli drop his ill-founded inquisition.

I welcomed the announcement that:

“More than 800 scientists and academics in Virginia, including nearly 300 from the University of Virginia (UVA), have sent a letter (pdf) to Virginia Attorney General Ken Cuccinelli, urging him to drop his investigation of former UVA Professor Michael Mann’s scientific research.”

“This letter shows that much of Virginia’s scientific and academic community is appalled that their attorney general has launched such a blatantly political investigation,” said Francesca Grifo, director of the Scientific Integrity Program at the Union of Concerned Scientists (UCS), which facilitated the organizing of the letter….

“Labeling scientific findings ‘fraudulent’ sets a disturbing precedent for attacking peer-reviewed science in the legal system,” said Grifo.

The attorney general’s action is just the most recent unjustified attack against climate science and scientists, but the letter signers fear it could have a much more lasting and damaging effect.

“Science is a search for the truth,” said Jeff Holt, an associate professor in UVA’s Department of Neuroscience, one of the 810 people who signed the letter. “If scientists are hassled, reprimanded or sued based on their data or their findings, it will dissuade scientists in their search for the truth. This lawsuit harkens back to the Dark Ages when scientists were tried for heresy when their findings ran contrary to the dogma of the day.” …

Scientists and academics from most of Virginia’s major higher education institutions signed the letter, including Christopher Newport University (5), College of William and Mary (38), George Mason University (85), James Madison University (31), Old Dominion University (19), Radford University (15), Randolph-Macon College (30), University of Mary Washington (21), University of Richmond (26), UVA (296), Virginia Commonwealth University (30), Virginia Polytechnic Institute and State University (68).

 
Full text of letter and list of signers here

5.  Science organizations can make statements and journals can editorialize against the war on climate scientists and urge resistance to Cucinelli’s demands

In an excellent example of this, a May 13 editorial in the science journal Nature (published online May 12) included the following:

Science subpoenaed

The University of Virginia should fight a witch-hunt by the state’s attorney general.

Climate science is under scrutiny once again, this time over a modest half-a-million dollars — the collective sum of five federal and state grants being investigated by Kenneth Cuccinelli, a firebrand conservative who was elected late last year as attorney general of Virginia. The grants had multiple recipients, but the official target of the probe is Michael Mann, an internationally respected climate scientist who was an investigator on all five grants while working at the University of Virginia in Charlottesville between 1999 and 2005….

Mann has long been a target of climate-change deniers, and the scrutiny intensified last autumn when his e-mails were among those stolen from the Climatic Research Unit at the University of East Anglia, UK. But Mann’s research has been upheld by the US National Academy of Sciences, and an investigation by Pennsylvania State University into the e-mails also cleared Mann of any misconduct. Given the lack of any evidence of wrongdoing, it’s hard to see Cuccinelli’s subpoena — and similar threats of legal action against climate scientists in a February report by climate-change denier Senator James Inhofe (Republican, Oklahoma) — as anything more than an idealogically motivated inquisition that harasses and intimidates climate scientists….

Cuccinelli’s actions against Mann hark back to an era when tobacco companies smeared researchers as part of a sophisticated public relations strategy to raise doubts over the science showing that tobacco caused cancer, and delayed the introduction of smoking curbs for decades. Researchers found themselves bogged down in responding to subpoenas and legal challenges, which deterred others from the field. Climate-change deniers have adopted similar strategies with alacrity and, unfortunately, considerable success….

Scientific organizations must respond quickly and forcefully any time political machinations threaten to undercut academic freedom. And, rather than complying, the University of Virginia should explore every avenue to challenge the subpoena.

A May 18 statement by the board of directors of the American Association for the Advancement of Science includes the following:

Scientists should not be subjected to fraud investigations simply for providing scientific results that may be controversial or inconvenient, particularly on high profile topics of interest to society. The way to resolve controversies of this nature is through scientific review and additional research.

In the majority of cases, scientific disagreements are unrelated to any kind of fraud and are considered a legitimate and normal part of the process of scientific progress. The scientific community takes seriously their responsibility for policing scientific misconduct, and extensive procedures exist to ensure the credibility of the research enterprise. Unless founded on some openly discussed evidence of potential misconduct, investigations such as that targeting Professor Mann could have a long-lasting and chilling effect on a broad spectrum of research fields that are critical to a range of national interests from public health to national security to the environment. Unless more clearly justified, Attorney General Cuccinelli’s apparently political action should be withdrawn.

(h/t Chris Mooney)

6. Eminent scientists can speak out together in opposition to the “recent escalation of political assaults on scientists in general and on climate scientists in particular.”  They can “call for an end to McCarthy-like threats of criminal prosecution against our colleagues based on innuendo and guilt by association, the harassment of scientists by politicians seeking distractions to avoid taking action, and the outright lies being spread about them.”  (See earlier CSW post, Letter from 255 National Academy of members on Climate Change and the Integrity of Science.)

7.  Other organizations also can weigh in on the side of undermining the legitimacy of Cuccinelli’s action.

The American Association of Univeristy Professors (AAUP) and the American Civil Liberties Union also have issued statements (“ACLU, AAUP to U-Va: Go to court over Cuccinelli demand for climate change records”), as has the Union of Concerned Scientists (“Cuccinelli urged to rescind subpoena; U-Va. urged to resist it”)

(h/t Michael Halpern)

8.  Virginia voters can call on their elected officials, including the governor and state legislators, to take issue with Cuccinelli’s action and call on him to rescind his demand.

9.  One we haven’t seen yet: The National Science Foundation, the federal agency that funded most of Michael Mann’s grants in question while he was at UVA, could perhaps step in and argue that the state doesn’t have jurisdiction over federal grants.

And so forth.

In his May 12 Energy Collective post “Turning Point in Attack on Climate Science,” Keith Schneider suggests, with reference to Cuccinelli’s over-reaching:

“His pursuit of the climate investigation may delight allies in Virginia’s Tea Party, but the responses by the UVa faculty and the members of the National Academy of Sciences could cause a backlash among less conservative voters who see the probe as an overreach by a powerful government officer. Cuccinelli’s demand for documents is a hunt, but not one that benefits science or that most citizens are likely to support.”

Hopefully that is true. But turning this dismal episode into something of value requires, not political cluelessness and up-front capitulation, but the kind of response we are seeing – interposing a multi-front campaign for the public interest between the Virginia AG’s attack on climate science and its immediate target.

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