Climate Legal Alchemy?

The Attorney General of Virginia, Ken Cuccinelli, is launching an extensive investigation into the career of climatologist Michael Mann. Although currently at Penn State, Mann was at the University of Virginia from 1999 to 2005. Cuccinelli has ordered the university to turn over just about every piece of paper, electronic document, or computer code that Mann ever touched while at UVA, and is acting under a Virginia law that allows the state to recover money fraudulently obtained from it. His theory seems to be that Mann's climate work is fraudulent, and therefore Mann should have to return the 500,000 dollars in state grants that he received.

The disturbing thing about this is that there doesn't seem to be any real basis for thinking Mann defrauded Virginia. The hacked emails of 'Climategate' seem to be the sole justification for this intrusive investigation. However, investigations of those emails by Penn State and the British government have not found any evidence of fraud, and none of Mann's publications have been retracted. Cuccinelli is suing the federal government over regulation of greenhouse gases, and it seems likely that this investigation is a fishing expedition undertaken in the hope that some kind of damning evidence can be found to bolster that suit.

Some have suggested that if Mann has done nothing wrong then he should have nothing to worry about, and that his work will gain credibility by being exonerated. But this misses the mark for several reasons. First is the principle of the matter--an AG launching an intrusive investigation into someone with no real basis to suspect fraud. Second, as we've seen with the frenzy that occurred over the Climategate emails, truth can take a backseat to misinformed impressions. At the least, you have to worry that the AG will not understand scientific culture and seek to punish ordinary scientific behavior. (Imagine being privy to legal correspondence where attorneys talk of trying to influence a jury, or trying to get their case before a more favorable judge or moved to a more favorable location. Within certain limits that is normal legal maneuvering, but it sure could sound sinister.)

More worrisome is the potential for the motivated AG to turn a scientific dispute into a legal issue, and the chilling effect that could have on scientific research that is politically unpopular or controversial. The answers to big questions usually come in bits and pieces, and subjective decisions must be made along the way. Further, hypotheses are not often falsified with one experiment. Just as we test and re-test ideas that seem to have merit in order to be sure that they stand up, sometimes we test and re-test ideas that seem to fail in order to be sure they deserve to be buried. In my opinion, passing legal judgment on such efforts and trying to claw back the research money involved is not a precedent we want to set.

Below is a list of some of the people and organizations who oppose Cuccinelli's actions.

UVA Faculty Senate
Nature
The Union of Concerned Scientists
The American Association of University Professors, joining the ACLU
The Washington Post
Even Michael Mann's persistent thorn-in-the-side, Steve McIntyre, opposes it.

Although it doesn't specifically address this situation, a recent letter signed by 255 National Academy of Sciences members, including 11 Nobel laureates, certainly applies. To wit:

We also 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.

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