Status of the ATI -vs- Mann and UVa emails saga

AMERICAN TRADITION INSTITUTE – PRESS RELEASE July 26, 2012

The ongoing saga of the American Tradition Institute versus the University of Virginia moved forward this week with filing of the arguments of the parties http://www.atinstitute.org/law-ctr/hosted-foia-documents/ on the central issues of the case. The legal arguments are shaping up to be all about academic freedom and less about whether the University can exempt the Michael Mann emails.

Under its primary argument under the Freedom of Information Act, the only emails the University can withhold are those that were produced or collected in the conduct of or as a result of study or research where such data records or information has not been publicly released, published, copyrighted or patented. A careful examination of the 31 emails placed before the court as “exemplars” of the 12,000 emails show that all but two of them reference research in some manner and of these 25 actually contain data, records or information produced or collected in the conduct of study or research.

Comparing those emails against Mann’s professional papers, ATI found that in every case, the data or information had long been released through publication. Facing this situation, the University has only one refuge – to claim academic freedom. Their argument is quite simple and quite wrong. They argue that release of the emails would chill academic discussions and those discussions are protected speech under the first amendment. They are joined in this argument by Michael Mann and in a separate amicus brief filed by the American Association of University Professors.

Here is the central question the court will face – does the First Amendment right to free speech in a public forum trump the right of citizens to see communications made by a public employee conducting government business. Because all but possibly one ambiguous email was made by a public employee in the conduct of public business, the First Amendment is not applicable. This is old, settled law: See, United States v. National Treasury Employees Union, 513 U.S. 454, 465 (1995) (speech on an issue unrelated to the speaker’s employment duties is protected speech, but where the speech is by an employee in his capacity as an employee on an issue involving their duties, the speech does not meet the Pickering threshold test.); and, Holland v. Rimmer, 25 F.3d 1251, 1254-55 & n.11 (4th Cir. 1994).

Lead Counsel for ATI, David Schnare, explained, “There have been few careful analyses of the Constitutional protections of Academic Freedom. Where the court has looked carefully, the First Amendment has never been found to offer any protection greater than that afforded any citizen.” He continued, “This case will tear down much of the opaque mystic university faculty have raised around their activities. It will give citizens the opportunity to monitor their university employees, something clearly needed in the climate debate.”

The ATI brief raises many more arguments showing why the University has no First Amendment rights under the banner of academic freedom. The Court will hear the parties arguments in a hearing on September 17th.

###

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79 Responses to Status of the ATI -vs- Mann and UVa emails saga

  1. vukcevic says:

    [trimmed by author's request]

  2. vukcevic says:

    Sorry for posting in the wrong thread. Reposted in the Greenland ice.

  3. Skiphil says:

    Interesting to see them struggling to come up with a new rationale….

    1st Amendment to the US Constitution:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    The actual 1st Amendment applies solely to what the US CONGRESS may and may not do. Then since the “Gitlow” case courts have extended it to apply to states. However, there is no plausibility at all to claiming that the 1st Amendment describes academic freedom. Even taking UVa as a “state” institution the emails issue and FOI don’t relate to “abridging the freedom of speech” and the AAUP is about private as well as public universities (so whatever doctrine of academic freedom they promulgate is not about a special status for employees of public institutions). It’s simply not an academic freedom issue.

  4. Gunga Din says:

    For a Mann who has nothing to hide …………………..

  5. War is Peace. Freedom is Slavery. And Freedom of Speech allows you to keep something secret.

    The issue seems pretty simple to me: I have a right to see anything produced by UVA, because as a Virginia taxpayer, I damn well paid for it. If you want your work to be private, fine: but don’t insist on being paid with public funds.

  6. mpaul says:

    If the judge were to rule that academics have a first amendment right to keep their official communications private, then that ruling would effectively gut all of the sunshine laws. First, why would we consider academics to be a special class apart from other public employees? I know that climate scientists they often consider themselves to be special — in the same way that the Blues Brothers claimed to be special because they were on “a mission from god”. But in reality, they are not. We don’t have special aristocratic classes in the American system — that’s what the revolution was partly about. Second, every public employee could then claim a first amendment right to keep their official communications out of the public eye. City councils could claim this right as justification for back room dealing. EPA employees could claim this right to prevent the public from knowing the technical basis for regulations. Where would it stop?

    I think UVA has a weak hand, but I suspect the real game here is to simply drag this out for as long as possible.

  7. RACookPE1978 says:

    But, you see, the “liberals” don’t want Steyn (or other conservatives) or other writers such as M&M to have “free speech” ABOUT public policy …

    They want to claim that “free speech” is ONLY allowed for the emails (written at work on public computers about public research in publicly-paid offices using publicly-paid servers) about “paid speech” that UVA or Penn State or NASA-GISS can claim based on the “speech” ABOUT money received for public research affecting trillions in public policy tax money worldwide and public policy towards energy and commerce affecting billions of innocents worldwide.

    /sarchasm – That gaping whole between a liberal and the real world 8<)

  8. zefal says:

    It will chill academic debate malfeasance.

    These emails were taken out of context!

    Just warming up the old refrain to keep it in prime running condition for when needed.

  9. Ray says:

    At the end of the day they might need to plead the 5th…

  10. tadchem says:

    You would think that Nixon’s former secretary Rose Mary Woods (of the “18-minute gap in the Nixon Watergate Tapes” fame) has a grandchild working at UVa.

  11. Paul Westhaver says:

    Piltdown Mann… another science fraud. Looks like UVA is getting ethics guidance from Penn State. That long thick track of slime associated with this guy has the bottom feeding lawyers torturing “transparency” into bunker mentality.

  12. Fred says:

    Time for a new label to counter their AGW.

    I propose MCF . . Mannian Climate Fearmongering.

    Must be some other good ones . . .

  13. Coach Springer says:

    ATI is going to need more money. UVA will go all the way to the Supreme Court to avoid it or ATI will have to to get it. And it will still depend on a muddy 5-4 decision. Since Roberts seems to want an express enumeration of protections and academic freedom is not expressly enumerated, it might go ATI’s way, but predicting that is going way out on a limb.

  14. more soylent green! says:

    Academic freedom is just another one of those phrases they trout out when they don’t want to be held accountable. As individuals, they have no more or less freedom than anyone else and as public employees, they’re official communications are public property, except in very few cases.

  15. Steven Mosher says:

    Check out Manns mails in the filing.

  16. Gail Combs says:

    I keep thinking of the courts decision on the Nixon tapes. The President, claiming executive privilege, filed a motion to quash the subpoena.

    This is from the Full Text of the Supreme Court Decision In The Watergate Case.

    4. Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211 . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of [418 U.S. 683, 685] Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703-707….

    7. Since a President’s communications encompass a vastly wider range of sensitive material than would be true of an ordinary individual, the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice, and the District Court has a heavy responsibility to ensure that material involving Presidential conversations irrelevant to or inadmissible in the criminal prosecution be accorded the high degree of respect due a President and that such material be returned under seal to its lawful custodian. Until released to the Special Prosecutor no in camera material is to be released to anyone. Pp. 714-716.

    Seems Mann and U of VA seem to think they have special privileges that the court did not see fit to grant a sitting president of the USA.

  17. Alan Watt, Climate Denialist Level 7 says:

    Modern courts have a tendency to ignore the original intent of the First Amendment free speech guarantee: that citizens may criticize the government, its policies and officials, and assemble with others to discuss what the government is doing and organize peaceful opposition (or support) of those policies and officials.

    In this context, interpreting the First Amendment to prevent citizens from leaning what their government is doing (indirectly, through funding of research) and thereby forstall potential criticism and opposition is an absolute perversion (but not, alas, unthinkable for modern courts). The FOI legislation formalizes the presumption that if it is public business, or carried out with public funding, then the public has a right to know what was said and done.

  18. Patrick says:

    “Academic Freedom” has no basis in law. It is simply an ideal, not a law, created by universities and professors. Usually trotted out to support some university’s or professor’s position and never with concomitant responsibilities – like many liberal social programs.

  19. Gunga Din says:

    Often I’ve read CAGW defenders describing FOI request as harassment, distracting etc.
    But in this case, everything is already buddled.
    Just turn it over. End of harassment. End of distraction. … Assuming what’s in them shows Mann was on the up and up.

  20. Luther Bl't says:

    A most interesting legal argument. Perhaps it is time for the public to find out what really happens when academics are free “to think the unthinkable”, and the monstrous immorality of some conceptions nourished with care before being allowed out to rampage on the street.

  21. “Time for a new label to counter their AGW.

    I propose MCF . . Mannian Climate Fearmongering.

    Must be some other good ones . . .” – Fred

    They already have an acronym for it, it’s “BS”. I’ll leave it to you to figure out what that means, I’m sure you’ve heard it before.

  22. KnR says:

    ‘to claim academic freedom’ and the legal validity of ‘academic freedom ‘ is what .
    This a a question of the law not the nicety of academia, and if were lucky UVa will fail to realise that and think all they need is usual ivory tower approach of a few quite word and some back stroking to make the problem go away .

  23. Gail Combs says:

    The other point is the The “open fields” doctrine and the expectation of privacy issue.

    Even a locked gate with a “No Trespassing” sign did not give rise to the expectation of privacy in this court decision

    … He had posted “No Trespassing” signs at regular intervals and had locked the gate at the entrance to the center of the farm. App. to Pet. for Cert. in No. 82-15, [p174] pp. 23-24. Further, the court noted that the field itself is highly secluded: it is bounded on all sides by woods, fences, and embankments, and cannot be seen from any point of public access. The court concluded that this was not an “open” field that invited casual intrusion….

    The court concluded that Katz, upon which the District Court relied, had not impaired the vitality of the open fields doctrine of Hester. Rather, the open fields doctrine was entirely compatible with Katz’ emphasis on privacy. The court reasoned that the “human relations that create the need for privacy do not ordinarily take place” in open fields, and that the property owner’s common law right to exclude trespassers is insufficiently linked to privacy to warrant the Fourth Amendment’s protection.

    There is also the Cell Phone warrantless search controversy that is going on right now. “…courts have reached conflicting opinions on whether a search warrant is necessary for cell phone location tracking records that are held by wireless company providers…”

    As far as e-mails sent in the work place goes.

    ….In finding that Aguiar had no reasonable expectation of privacy, the court adopted the four factors used In re Asia Global Crossing, Ltd., 322 B.R. 247, 257 (S.D.N.Y. 2005) to determine whether an employee has an expectation of privacy in emails generated at the workplace. The factors consider whether:

    (1) the company maintains a policy banning personal or other objectionable use, (2) the company monitors the use of the employee’s computer or email, (3) third parties have a right of access to the computer or emails, and (4) the company notifies its employees, or was the employee aware, of the company’s use and monitoring policies.

    Here, these factors were easily satisfied by the employer’s generic information technology policy stated in its employee handbook that it sufficiently promulgated. As long as an employer adheres to its own established policy, its employees have no expectation of privacy in emails transmitted through the employer’s server. The court noted that “sending a message over [an] e-mail system was like placing a copy of that message in the company files.” The court may have gone farther than its holding citing Black v. State, which found attorney-client privilege inapplicable for a telephone call when the party was warned that telephone conversations were monitored and taped….

    http://ellblog.com/?p=1919

    It would seem that the employee/student handbook may be a key factor in the case.

  24. BarryW says:

    Insane logic. How does The right to say something allow it to be hidden from the rest of us? Add to that the use of public resources. As a tax payer I have a right to the product of my employees (government workers) work. Their argument is nothing but elitist crap and it sickens me that the VA legislature doesn’t just drop on them like a ton of bricks and put them in their places. This should never have had to go to court. They’ve wasted the taxpayers money defending the indefensible.

  25. JohnH says:

    Steven Mosher says:
    July 26, 2012 at 12:41 pm
    Check out Manns mails in the filing.

    I did, lots of mentions of a Frank Very or a Very Frank but never heard of him ;)

  26. Skiphil says:

    Interesting allusion when Mann writes to Michael Oppenheimer at Princeton (among others including S. Schneider), requesting urgent help in finding free legal advice because McIntyre and McKittrick have been showing up so many of his lies that it will “make things impossible for me”:

    Oppenheimer replies promptly, “I’ll contact some people who may be able to help right away”

    Now that email does not say who those “some people” might be, but Oppenheimer spent most of his career with the activist “Environmental Defense Fund” before landing the Princeton gig… and EDF has been at the heart of enviro-activism for decades.

    http://en.wikipedia.org/wiki/Environmental_Defense_Fund

    Including connections with Soros, Tides Found., etc. So it will not be any surprise if it should turn out that the “some people” Oppenheimer thought could help with funds and/or free legal advice would be from those circles.

    =============================================================================================

    on p.147 of the “Petitioners Exemplars”:

    http://www.atinstitute.org/wp-content/uploads/2012/01/2012-1-24-Petitioners-Exemplars.pdf

    ———————————————–
    Michael Oppenheimer wrote:

    Michael:
    This is outrageous. I’ll contact some people who may be able to help right away.

    From: Michael E. Mann [[2]mailto:mann@virginia.edu]
    Sent: Friday, June 24, 2005 4:27 PM
    To: shs@stanford.edu;
    omichael@Princeton.EDU;….[and others]

    Subject: NEED HELP!
    Importance: High
    dear all,
    this was predicted–they’re of course trying to make things impossible for me. I need
    immediate help regarding recourse for free legal advice, etc.
    mike
    ______________________________________________________________

    Professor Michael E. Mann
    Department of Environmental Sciences, Clark Hall
    University of Virginia
    Charlottesville, VA 22903
    _______________________________________________________________________
    e-mail: mann@virginia.edu

  27. commieBob says:

    Academic freedom means a professor can’t be fired for taking an unpopular position. ie. MIT can’t fire Richard Lindzen because he says CO2 is not causing CAGW. The reason professors can’t be fired is that they have tenure. Academic freedom, thus, seems to be the main argument for tenure.

    As far as I can tell, academic freedom is a good thing.

  28. more soylent green! says:

    It would seem that the employee/student handbook may be a key factor in the case.

    Is the UVa employee handbook available online?

  29. eyesonu says:

    Interesting that Mann would try to apply the first amendment to this.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Are they literally applying an establishment of the religion of CAGW? Is their god CO2? Is Al Gore their Jesus? Does Mann think he’s a high Priest? Are the academic institutions the houses of worship? Are government grants simply required tithes and penance due by the masses? Is hell a slight warming benefiting crop growth and mankind? Is the bible the IPCC reports whose writings are adjusted to pay tribute to the high priests? Is anyone who questions their religious beliefs a witch? Will they burn these witches as they have done in the past to cleans the soul of their beliefs?

  30. Skiphil says:

    This is not about the academic freedom issue but a substantive scientific matter. Hope it’s ok for this thread since the point of debating the legal aspect is to see whether Mann can be held accountable for non-disclosures of scientific uncertainties and worse over the past 12+ years.

    Ray Bradley in July 2000 shows that he knows 1000 yr. proxy reconstruction in which he participated with Mann and Hughes is full of wide uncertainties, even while he still over-estimates the quality of the reconstruction and assumes non-existent statistical significance. Prior to M&M’s work Bradley seems to have only a weak grasp of the issues, even though he is supposed to be one of the eminences of the field.

    His email, while acknowledging the problems in a limited way, shows a remarkable lack of curiosity about the real statistical and scientific issues, and it also reeks of confirmation bias: “We tried to demonstrate that this was not a problem of the tree ring data we used”….

    Careless phrasing, or a clear indication of how he/they want the results to turn out?? I’d say the latter.

    from pp. 17-18 of Petitioners Exemplars:

    From: “Raymond S. Bradley”
    To: Frank Oldfield
    Subject: Re: the ghost of futures past
    Date: Mon, 10 Jul 2000 08:57:19 -0400
    Cc: alverson@pages.unibe.ch, jto@u.arizona.edu, k.briffa@uea.ac.uk, mhughes@ltrr.arizona.edu, pedersen@eos.ubc.ca, whitlock@oregon.uoregon.edu, mann@multiproxy.evsc.virginia.edu

    ….

    “….But there are real questions to be asked of the paleo
    reconstruction. First, I should point out that we calibrated versus
    1902-1980, then “verified” the approach using an independent data set for
    1854-1901. The results were good, giving me confidence that if we had a
    comparable proxy data set for post-1980 (we don’t!) our proxy-based
    reconstruction would capture that period well. Unfortunately, the proxy
    network we used has not been updated, and furthermore there are many/some/
    tree ring sites where there has been a “decoupling” between the long-term
    relationship between climate and tree growth, so that things fall apart in
    recent decades….this makes it very difficult to demonstrate what I just
    claimed.
    We can only call on evidence from many other proxies for
    “unprecedented” states in recent years (e.g. glaciers, isotopes in tropical
    ice etc..). But there are (at least) two other problems — Keith Briffa
    points out that the very strong trend in the 20th century calibration
    period accounts for much of the success of our calibration and makes it
    unlikely that we would be able be able to reconstruct such an extraordinary
    period as the 1990s with much success
    (I may be mis-quoting him somewhat,
    but that is the general thrust of his criticism). Indeed, in the
    verification period, the biggest “miss” was an apparently very warm year in
    the late 19th century that we did not get right at all. This makes
    criticisms of the “antis” difficult to respond to (they have not yet risen
    to this level of sophistication, but they are “on the scent”).
    Furthermore, it may be that Mann et al simply don’t have the
    long-term trend right, due to underestimation of low frequency info. in the
    (very few) proxies that we used. We tried to demonstrate that this was not
    a problem of the tree ring data we used by re-running the reconstruction
    with & without tree rings, and indeed the two efforts were very similar —
    but we could only do this back to about 1700. Whether we have the 1000
    year trend right is far less certain
    (& one reason why I hedge my bets on
    whether there were any periods in Medieval times that might have been
    “warm”, to the irritation of my co-authors!). So, possibly if you crank up
    the trend over 1000 years, you find that the envelope of uncertainty is
    comparable with at least some of the future scenarios, which of course begs
    the question as to what the likely forcing was 1000 years ago….”

  31. gregole says:

    What is weird to me is how publicly funded non-defense, non national security research can be considered intellectual property somehow, by the researcher. Where are the data? Let’s see the emails. What is being hidden?

    I own and operate a design engineering and manufacturing company. We are acutely aware of intellectual property and who owns it on a daily basis. These examiners and researchers do not impress me with their ideas about keeping their publicly funded efforts opaque and invisible from scrutiny because somehow they think they “own” public property.

    As far as emails – if anyone in our organization even came close to the gutter-level crap communication as exemplified in Climategate 1.0 and 2.0 they would summarily be fired and they know it. Every email we write can stand up to legal public scrutiny. And we are just a small manufacturing company. These climate scientists are saving the world (in their minds at least) and cannot tolerate even the slightest scrutiny? Make me laugh.

  32. Gail Combs says:

    JohnH says:
    July 26, 2012 at 1:31 pm

    Steven Mosher says:
    July 26, 2012 at 12:41 pm
    Check out Manns mails in the filing.

    I did, lots of mentions of a Frank Very or a Very Frank but never heard of him ;)
    ________________________________
    No wonder you have not heard of Frank Very

    …Every author likes to think that their book will occasionally be perused frome time to time even a century or two later…when reading through the crumbling though still-illuminating pages of Arrhenius’ work or the less famous though equally crumbling ( and still-illuminating) papers of Frank Very…Surley while Frank Ver’s ideas on radiative transfer are still of interest, any description of the charts and graphical techniques for doing the calculations at the time would have at most historical interest…..

    Principles of Planetary Climate by Raymond T. Pierrehumbert

  33. Paul Coppin says:

    Ask an untenured professor sometime about “academic freedom”…

  34. jorgekafkazar says:

    commieBob says: “Academic freedom means a professor can’t be fired for taking an unpopular position. ie. MIT can’t fire Richard Lindzen because he says CO2 is not causing CAGW. The reason professors can’t be fired is that they have tenure. Academic freedom, thus, seems to be the main argument for tenure. As far as I can tell, academic freedom is a good thing.”

    No, tenure is a good thing. Tenure means a prof can’t be fired (easily) for his unpopular position. Academic freedom is a fictitious concept that academics try to use to justify their elitism.

  35. mpaul says:

    The Petitioners Memorandum of Fact and Law makes for interesting reading. A few years back, UVA fired an employee:

    In the matter of Bowers v. The Rector and Visitors of the University of Virginia, 276 Fed.
    Appx. 278; 2008 U.S. App. LEXIS 9558 (4th Cir. 2008) the University defended its decision to
    fire Dena Bowers because she used her University email account to transmit personal
    communications without stating that the email was intended to be personal.

    In that case the employee argued that her email was protected under the first amendment. UVA argued in court that this was not true:

    The University argued, and the Court noted, that “The Commonwealth of Virginia
    maintained an internet use policy that required employees to identify personal communications
    sent from Commonwealth systems as personal, to prevent them from being viewed as official
    communications.” Bowers 276 Fed. Appx. at 280 n.1. Ms. Bowers argued that the email and
    attachments sent from her work computer constituted speech protected under the First
    Amendment. The Court held otherwise, finding that:
    Bowers violated a state policy limiting the sending of personal email from state
    accounts and computers. This policy bolstered the University’s attempts to
    manage the dissemination of information from University accounts and
    computers, part of its broader attempt to provide “effective and efficient services
    to the public.”

    Yet here, in the Mann case, the university is arguing that Mann’s emails sent from university computers are personal, despite the fact that Mann did not label any of them as “personal” pursuant the the universities policies.

    Apparently, what’s good for the goose, does not go to the climate scientist.

  36. Kaboom says:

    It would seem they are not concerned with protecting free speech in the context of academic freedom but instead silence. Probably as in “you have the right to remain silent”.

  37. Skiphil says:

    mpaul says:
    July 26, 2012 at 3:59 pm

    Incredible (though nothing seems beyond belief with such clowns)…. they can’t even pretend to be consistent and rational.

    We have seen no emails from Mann in Climategate that were marked “personal”…. ergo, at least those and similar of his UVa emails are presumed to be official state business and subject to FOI.

  38. wobble says:

    Facing this situation, the University has only one refuge – to claim academic freedom.

    I read the transcript of the last hearing. IIRC, the judge seemed unimpressed with this notion.

  39. wobble says:

    mpaul says:
    July 26, 2012 at 3:59 pm

    Yet here, in the Mann case, the university is arguing that Mann’s emails sent from university computers are personal, despite the fact that Mann did not label any of them as “personal” pursuant the the universities policies.

    Apparently, what’s good for the goose, does not go to the climate scientist.

    IIRC, I think the UVA lawyers tried arguing that emails could still be private in nature even if they were part of job related communications. When the judged asked how this could be, I think they gave an example of making travel arrangements or dinner arrangements with work colleagues.

  40. Andrew30 says:

    I think that everyone involved in this, the lawyers, the judge the clerks, all of them know what is in these emails, likely they have read most of them. The purpose of the hearing is to find out who is allowed to say and write about what they already know.

    It is like the police seeing a crime and chasing the perpetrator in to a church, the police know the perpetrator is in there as does the judge the bishop and everyone else, everyone know that the perpetrator did it but the bishop cries out ‘sanctuary of the church’; so the game moves to the court. The police don’t stop watching the building, they just wait out side in the hope that the judge on the case is of sound mind.

    This is not a fishing expedition, the fish are already hooked, landed and tanked.
    This is a gutting expedition and they are driving home to the cutting board.

    Tick, tick tick.

  41. Steven Mosher says:

    read the mails at the end of the filing. post climategate. slamming spencer, and asking mandia for help.

    the penn state handbook is part of the filing as well as the notice by computers that indicates email is not private.

    interesting read

  42. RoHa says:

    “This case will tear down much of the opaque mystic university faculty have raised around their activities”

    “Mystique”, surely.

  43. David Falkner says:

    If (in liberal theory) the government can force the Catholic Church to provide condoms and abortions, what twisted logic gives rise to academic freedom which is not specifically mentioned in the US Constitution?

  44. Skiphil says:

    The filing’s emails of Michael Mann show him in “political war” mode, joined at the hip with activists like Joe Romm and ClimateProgress/Think Progress, Naomi Oreskes, and Scott Mandia:

    From: Michael Mann
    To: Ben Santer
    Cc: Abraham, John P.; Dessler; mandias@xxxxx Mandia;
    Weymann; gs210@columbia.xxxxx Schmidt; trenbert@ucar.xxxxx Trenberth; carl mears; Frank Wentz; s.sherwood@unsw.xxxxx Sherwood; Karl Taylor; Tom Wigley; Naomi Oreskes
    Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler
    Date: Friday, December 10, 2010 12:41:57 PM

    Ben et al,
    I’ve taken the liberty of copying Naomi in on this message. Her book w/ Eric Conway (“Merchants of Doubt”) i required reading for any of us. It provides the further historical context essential to understand this latest incident. This incident hardly represents the rogue behavior of a single contrarian scientist. Rather, Spencer lending his scientific credibility (well-what, if any, is left of it) to a coordinated, longterm, industry-funded smear and disinformation campaign. Spencer couldn’t have pulled this off on his own. Rather, he had the full resources of the fossil fuel front group known as “CFACT”
    (http://www.sourcewatch.org/index.php/Committee_for_a_Constructive_Tomorrow) behind him. They are the ones who organized the press conference, rolled out their fake “Lord” Monckton for further theater, etc. we ignore this larger context at our peril.
    Mike

    From: Michael Mann
    To: Abraham, John P.
    Cc: Scott Mandia; trenbert@ucar.xxxxx Trenberth; Dessler;
    Weymann; gs210@columbia.xxxxx Schmidt; Ben Santer
    Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler
    Date: Friday, December 10, 2010 9:11:53 AM

    yes, no question. we’ve got a rolodex. we need to use it,
    m

    On Dec 10, 2010, at 10:08 AM, Abraham, John P. wrote:
    Mike,
    We can provide the quotes from experts but we need a media person to run with the
    story c..
    Scott, this is really for Eli to do c. Can he write a story about this,
    –]John

    From: Michael Mann [mailto:mann@meteo.psu.xxxxx]
    Sent: Friday, December 10, 2010 9:05 AM
    To: Abraham, John P.
    Cc: Scott Mandia; trenbert@xxxxx Trenberth; Dessler;
    Weymann; gs210@columbia.xxxxx Schmidt; Ben Santer

    Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler

    folks, Joe Romm’s comments on this might be of some interest:

    “Because they are lazy and/or uninformed, even most of the ‘sophisticated’ media is either
    unwilling or incapable of adjudicating between two disagreeing scientists. Unless one of those
    scientists can be clearly shown to be truly fringe, whereas the other is in the mainstream (has
    many who support him or her). You must do the media’s homework for them.”

    The right wing and deniers are very good at repeating over and over again attacks on our best
    spokespeople and scientists in order to delegitimize them.
    The fact is Spencer should have been delegitimize on the basis of 1) his being obstinately dead wrong about the satellite data, 2) his creationism, and 3) his generally bizarre views: ”I predict that the proposed cure for global warming. reducing greenhouse gas emissions. will someday seem as outdated as using leeches to cure human illnesses.”

    http://climateprogress.org/2010/04/20/the-great-global-warmingblunder-roy-spencer-marc-morano-cureglobal-warming-reducinggreenhouse-gas-emissions-leeches/

    Folks need to repeat these over and over again. That’s what I did in my post — but the Spencer stuff was buried at the end of a long post. Now, on the specific inanity of clouds causing El Nino — you need to round up a bunch of the country’s leading experts on climate modeling and/or El Nino to just mock him for that.
    This is a busy day for me, but I really can’t emphasize this enough. Get a half dozen quotes from leading experts in the field, post them, and repeat them over and over again.
    I don’t know what it takes to discredit a pathological crank-case like Spencer, but the alternative is that he keeps doing this over and over again.

    From: Michael Mann [mailto:mann@meteo.psu.edu]
    Sent: Friday, December 10, 2010 8:45 AM
    To: Scott Mandia
    Cc: trenbert@ucar.xxxxx Trenberth; Abraham, John P.; Dessler;
    Weymann; gs210@columbia.xxxxx Schmidt; Ben Santer
    Subject: Re: Serious accusations made by Roy Spencer against Andrew Dessler

    well put Scott, Specer’s actions are an affront to the scientific profession. reminds me of Pons and Fleischman holding a press conference back in the 1980s to announce they had achieved cold fusion. only this is worse, because Spencer doesn’t even have any results of his to announce, he’s simply slandering others.
    this needs to be called out, publicy and loudly. we ought to be able to get some journalists nterested in this.
    Scott/John–you guys ought to have quite a rolodex of names now–I suggest we use it, perhaps we need to use the CCRRN in an even more pro-active mode for situations like this?

    mike

    Michael E. Mann
    Professor
    Director, Earth System Science Center (ESSC)
    Department of Meteorology Phone: (814) xxxxx
    Walker Building FAX: (814) xxxxx
    The Pennsylvania State University

  45. Gail Combs says:

    Given that the U of Va fired a person over “personal e-mails”

    The University argued, and the Court noted, that “The Commonwealth of Virginia
    maintained an internet use policy that required employees to identify personal communications
    sent from Commonwealth systems as personal, to prevent them from being viewed as official
    communications.” Bowers 276 Fed. Appx. at 280 n.1.

    and
    Steven Mosher says:
    July 26, 2012 at 6:14 pm

    …the penn state handbook is part of the filing as well as the notice by computers that indicates email is not private.

    It would seem that what is on trial here is not Mike Mann and the FOIA but our actually court system. Do we have a country ruled by law or do we have a country ruled by men. Is the law applied with an even hand or with favoritism.

    With luck the judge/jury will be aware of that fact and take into account the repeated obstruction of justice by Mann, the right of the tax payer to view ALL the work done on their dime and the used of FOIA for citizens to investigate the fraudulent use of tax payer funds.

    And to top it all off here is a Memorandum direct from Whitehouse.gov:

    Transparency and Open Government
    Memorandum for the Heads of Executive Departments and Agencies

    SUBJECT: Transparency and Open Government

    My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.

    Government should be transparent. Transparency promotes accountability and provides information for citizens about what their Government is doing. Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public. Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public.

    Government should be participatory. Public engagement enhances the Government’s effectiveness and improves the quality of its decisions. Knowledge is widely dispersed in society, and public officials benefit from having access to that dispersed knowledge. Executive departments and agencies should offer Americans increased opportunities to participate in policymaking and to provide their Government with the benefits of their collective expertise and information. Executive departments and agencies should also solicit public input on how we can increase and improve opportunities for public participation in Government.

    Government should be collaborative. Collaboration actively engages Americans in the work of their Government. Executive departments and agencies should use innovative tools, methods, and systems to cooperateamong themselves, across all levels of Government, and with nonprofit organizations, businesses, and individuals in the private sector. Executive departments and agencies should solicit public feedback to assess and improve their level of collaboration and to identify new opportunities for cooperation.

    I direct the Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB) and the Administrator of General Services, to coordinate the development by appropriate executive departments and agencies, within 120 days, of recommendations for an Open Government Directive, to be issued by the Director of OMB, that instructs executive departments and agencies to take specific actions implementing the principles set forth in this memorandum. The independent agencies should comply with the Open Government Directive….http://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment

    So we even have the president backing up our right to the information we paid for.

  46. mpaul says:

    Apparently the University is arguing that Mann’s scheming to turn the media against Roy Spencer is a proprietary work product whose public disclosure would result in a material loss of profit potential for the university. I guess they were planning to license his Character Assassination Techniques(TM) to other universities and climate scientists.

  47. atheok says:

    Whoosh!

    I originally choked trying to read through Mann’s Affidavits. I gagged trying to read (chin up, shoulders back) through Mann’s egocentric manic twaddle (like the Judge will be overwhelmed by his copiously self documented grandeur). So I appreciate others posting some of the email excerpts.

    Two thoughts come to mind…
    The first; is this some indication of the remaining FOIA emails in that password protected file?

    The second rumination is that if these are the average less juicy email maunnderings, no wonder the manniacal one is so desperate to prevent their release.

    Well, actually there was a third thought, but I’m sure it occurred to everyone else. A lot of those Mann affidavits either look like they were source for his book or his book was source for his affidavits. Makes one wonder how much of his affidavits are his versions of the world.

  48. kforestcat says:

    Reading the “Petitioners Memorandum of Fact and Law” ATI recommends the Judge read sections of Urofsk , 216 F3d at 412 n12. I’d love a fly-on-the-wall at that reading. Some background.

    In Urofsky, six professors employed by public colleges and universities in Virginia brought a federal suit against Virginia’s governor challenging a state law restricting state employees from accessing sexually explicit material on computers owned or leased by the state. The professors contended that state university and college professors have the constitutional right to determine for themselves, without the input of the state, the subjects of their research, writing and teaching. However the federal 4th Circuit Court ruled:

    “[The professors] ask us to recognize First Amendment right of academic freedom that belongs to the professor as an individual. The Supreme Court, to the extent it has constitutionalized a right of academic freedom at all, appears to have recognized only an institutional right of self governance in academic affairs.”

    The 4th Circuit Court clarified that public employees generally (and therefore college professors) have no First Amendment protection when they are speaking as public employees. It is only when they are speaking as individual citizens on their own time that they enjoy First amendment protection.

    Moreover, the court ruled that professors employed by public universities do not have free speech rights not enjoyed by any other public employee (or any other citizen); because academic freedom, to the extent it is recognized by the federal courts, belongs to the institution, not to the individual faculty member. Specifically the court stated:

    “that the argument raises the specter of a constitutional right enjoyed by only a limited class of citizens. Indeed, the audacity of Appellee’s’ claim is revealed by it potential impact in this litigation.” … “Such a result is manifestly at odds with a constitutional system premised on equality”

    I’ve always felt the idea that the academic community is entitled to First Amendment rights not reserved for all Americans is repugnant… as violation of the principal of “equality before the law”. It would appear the 4th Circuit agrees with this proposition.

    Regards,
    Kforestcat

  49. Lightrain says:

    How many elections/appeals before they drag it out in the Supreme court?

  50. Bill Tuttle says:

    more soylent green! says:
    July 26, 2012 at 12:41 pm
    Academic freedom is just another one of those phrases they trout out…

    The perfect typo — because they’re telling ATI to “Go Fish”…

  51. izen says:

    I am increasing puzzled by the apparent enthusiasm that some {many?} here have for the UVA mann emails. What significant information about the AGW theory do they think might be revealed???

    There are three possible senarios that I can think of;

    1}- like the CRU hack they reveal a degree of partiality in the presentation of the data, so that as with “Mike’s Nature trick” there is some evidence of putting the ‘best’ presentation of the data, but nothing that refutes the underlying findings. After all the original MBH98 paper has been confirmed by multiple other lines of evidence, and the paleoclimate data have little or no relevance to the AGW theory beyond indicating that climate sensitivity may be higher than suspected if the MWP was warmer than previously thought.

    2}- The emails reveal a deliberate exercise in data falsification and dishonest results as a fraudulent conspiracy to distort paleoclimate findings.
    But that would still have no impact on AGW theory which is not dependent of paleoclimate evidence beyond the possible indication of higher climate sensitivity.

    3}- The emails reveal the extent of a worldwide conspiracy to construct a global warming process with false observations of animal and plant migration and the use of russian and US submarines to destroy Arctic ice to create the falling extent since the 1970s.
    Although why this would also include falsification of the paleoclimate record is … Obscure.!

    Perhaps some of those that express such anticipation of revealing the Mann UvA emails could provide a credible example of what they might contain that would have a significant effect on AGW theory.
    Because I cannot see any possible email content that would be of significance unless it revealed a massive conspiracy starting with Callender in the 1930s to construct a complete false body of knowledge encompassing everything from temperature records to borehole data and satellite sensor readings!

  52. richardscourtney says:

    Friends:

    This case is interesting because it reveals the ideas and inconsistencies which govern policy behaviour of at least one US university; i.e. Penn State. Those ideas and inconsistencies are interesting in so far as they imply attitudes of the Administration of this and probably other universities.

    But there is no point in discussion of the case itself because the court(s) will do that and provide judgement. Subsequently, discussions of the judgement may be worthwhile and can be anticipated.

    In my opinion, the important points of policy and inconsistency revealed by the documents tabled to the court are as follows.

    (a) The university has a policy on “private” emails which it applies at a whim .
    In one documented case the university fired an employee for not labeling private emails as be being “private”. However, the same university seems to be arguing to the court that emails of Dr Mann must be assumed to be private whether or not they are labelled as such. This would seem to undermine the legal redress for ‘unfair dismissal’ to which all employees are entitled: it gives the university an ability to ‘hire & fire’ which the law does not afford to other employers.

    (b) Dr Mann circulates extremely defamatory emails about at least one other scientist (viz. Roy Spencer) but expects his activities to be secret to only those whom he selects for receipt of those emails .
    It is difficult to understand how this can be understood as being other than an attempt to create a conspiracy to defame both the person and the work of another scientist.

    (c) The university is claiming that the activities of Dr Mann in circulating the defamatory emails should be kept secret because otherwise the academic freedom of Dr Mann would be inhibited .
    This would seem to be a prima facie case of the university assisting – or at least condoning – attempted conspiracy to defame the person and work of a scientist employed by another university, and that other university competes with Penn State for funding.

    (d) It is not clear what Penn State means by “academic freedom” .
    Points (a) to (c) suggest that Penn State considers “academic freedom” to mean “the university has a right to keep from public disclosure whatever the administration of Penn State considers would cause difficulty for the university if it were public knowledge”.

    Richard

  53. cedarhill says:

    In the end, it will be Robert’s Rule or Kennedy’s Rule. That is if Mann and/or his funders decide to try to block the likely state rulings by appealing the VA case or bringing a seperate action should cert be denied when the case is finally ruled upon by the top VA court.
    Another few years to go.

    What really needs to be done is to pressure the legislative bodies to make all publicly paid for work, especially “studies” to have all their records online and freely accessible immediately upon creation. That means all data, all contracts, all email, all drafts, all papers, etc. And withhold all funding for non-compliance and make it both civil and criminally fraudulent for those attempting to circumvent the law (such as simply delaying “completing” a study). If the academics don’t like it, go find a job in all those “infrastructure” stimulus jobs we hear so much about.

  54. izen says:

    I am increasing puzzled by the apparent enthusiasm that some {many?} here have for the UVA mann emails. What significant information about the AGW theory do they think might be revealed???

    There are three possible senarios that I can think of;

    1}- like the CRU hack they reveal a degree of partiality in the presentation of the data, so that as with “Mike’s Nature trick” there is some evidence of putting the ‘best’ presentation of the data, but nothing that refutes the underlying findings. After all the original MBH98 paper has been confirmed by multiple other lines of evidence, and the paleoclimate data have little or no relevance to the AGW theory beyond indicating that climate sensitivity may be higher than suspected if the MWP was warmer than previously thought.

    2}- The emails reveal a deliberate exercise in data falsification and dishonest results as a fraudulent conspiracy.
    But that would still have no impact on AGW theory which is not dependent of paleoclimate evidence beyond the possible indication of higher climate sensitivity.

    3}- The emails reveal the extent of a worldwide conspiracy to construct a global warming process with false observations of animal and plant migration and the use of russian and US submarines to destroy Arctic ice to create the falling extent since the 1970s.
    Although why this would also include falsification of the paleoclimate record is … Obscure.!

    Perhaps some of those that express such anticipation of revealing the Mann UvA emails could provide a credible example of what they might contain that would have a significant effect on AGW theory.
    Because I cannot see any possible email content that would be of significance unless it revealed a massive conspiracy starting with Callender in the 1930s to construct a complete false body of knowledge encompassing everything from temperature records to borehole data and satellite sensor readings!

  55. mfo says:

    Mann is now involved in three law suits. He is very busy deleting beetle larvae from his facebook page. He is trying to flog some book with a silly title. He must be aware that his emails with CRU will come to light anyway via the password protected FOIA batch. What kind of person gets into such a mess? It’s like watching an accident in slow motion.

  56. G. Karst says:

    izen says:
    July 27, 2012 at 3:21 am

    I am increasing puzzled by the apparent enthusiasm that some {many?} here have for the UVA mann emails. What significant information about the AGW theory do they think might be revealed???

    Shouldn’t that question be turned around, to the proper prime. What is Mann, so afraid of, in his emails, that great treasure, must be spent to keep hidden. THAT IS WHAT YOU SHOULD FIND PUZZLING! Either the public has a right to know, or it does not. Either the public is the client through public funding, or it isn’t. GK

  57. D. Patterson says:

    Mann’s Climategate e-mail demonstrates his efforts to obstruct, deny, and chill academic free speech rights of the public who paid for the data and analyses contained in the e-mail.

  58. izen says:

    @- cedarhill
    “What really needs to be done is to pressure the legislative bodies to make all publicly paid for work, especially “studies” to have all their records online and freely accessible immediately upon creation.”

    There are several reasons why that is a ridiculous suggestion out of touch with the realities of scientific research.
    The publishing of research journals is big business, requiring papers to be freely available is a direct government interference with the private business system of scientific publishing. It is more government regulation stopping commercial activity and would transgress copyright laws.
    In the medical field it would stop pharmaceutical development. Nearly all drug research and testing has some public funding involvement, if this required full disclosure then the commercial advantages of drug invention would be removed and new treatments would not be developed except by government edict.

    There are a number of other serious problems with any call to make all data, testing and results freely available that are obvious and well known to anyone familiar with scientific research. The suggestion that there could be full public access to such data and results beyond that published in the commercial literature indicates a deep ignorance of how science is actually done.

  59. Roy UK says:

    @izen

    I know you think that you put all of your thoughts/questions in a nice easy to read 3 question post.

    However, question 1 is almost the correct answer. Anyone reading it would think that you were correct in your assertions.

    ie{you said}: 1}- like the CRU (1) hack they reveal a degree of partiality in the presentation of the data, so that as with “Mike’s Nature trick” there is some evidence of putting the ‘best’ presentation of the data, (2)but nothing that refutes the underlying findings. (3)After all the original MBH98 paper has been confirmed by multiple other lines of evidence, and the paleoclimate data have little or no relevance to the AGW theory beyond indicating that climate sensitivity may be higher than suspected if the MWP was warmer than previously thought.

    1. Hack or release?
    2. Lots of people have refuted the findings. You can go find them yourself. {hint, the are not on the website fakeclimate}
    3. Confirmed by people who have a vested interest in the global warming scam maybe, but discredited by others. But I am sure you want to believe the hype and not do your own research, just let your high priest tell you what to believe.

    Perhaps {like lazyteenager} you should read some of the information here at WUWT instead of just posting BS.

  60. Gail Combs says:

    izen says:
    July 27, 2012 at 7:29 am

    The publishing of research journals is big business, requiring papers to be freely available is a direct government interference with the private business system of scientific publishing…

    Nearly all drug research and testing has some public funding involvement, if this required full disclosure then the commercial advantages of drug invention would be removed….
    ________________________________
    Sorry, If the drug companies use TAXPAYER MONEY to develop a drug THEN TAXPAYERS OWN the patent not them.

    What you are describing is called Neo-corporatism. That is collusion between large corporations and government to fleece the public and stifle all other competition. Let the corporations stand on their own darn feet!

    I am a capitalist and I absolutely HATE Neo-corporatism because it stifles competition and creativity, it fosters mediocrity, useless red tape and huge wastes of a countries wealth.

  61. izen says:

    @- Roy UK
    “1. Hack or release?”
    Hack.
    The police investigation has confirmed it was an outside intrusion.

    @-“2. Lots of people have refuted the findings. You can go find them yourself. {hint, the are not on the website fakeclimate}”
    Even M&M did not refute the findings, just quibbled with the statistical methodology. There has been no credible research that shows that global temperatures significantly exceeded the error bars established by by Mann et al originally. If you really think there are any paleoclimate reconstructions put there that DO refute the NAS findings and all the other confirming research out there please post it.

    @-“3. Confirmed by people who have a vested interest in the global warming scam maybe, but discredited by others. But I am sure you want to believe the hype and not do your own research, just let your high priest tell you what to believe.”
    I do not want to ‘believe’ anything, I want to find the best {BEST?} data and analysis done by the most competent scientists so that I have the best understanding of the issue.

    The idea that people have a vested interest in AGW is silly. Unless you WANT serious problems with future agriculture and environmental conditions! It is like saying that the medical establishment in the 1950s had a ‘vested interest’ in smoking causing cancer.
    On the other hand there are very powerful, wealthy and influential commercial vested interests in portraying climate research as ‘junk science’ just as the tobacco companies did with cancer.

    @-“Perhaps {like lazyteenager} you should read some of the information here at WUWT instead of just posting BS.”
    I make a point of reading information from ALL possible sources, even Lord Monckton and Tim Curtain. Although that is mainly for the entertainment value

  62. Gail Combs says:

    izen says:
    July 27, 2012 at 8:48 am

    “1. Hack or release?”
    Hack.
    The police investigation has confirmed it was an outside intrusion.
    ___________________________________________
    HA HA HA HA – ROTFLMAO! you have got to be kidding.

    The Norfolk Police found EXACTLY what the politicos wanted them to find. Anyone who has ever had to work with the police in real life vs watching the crap on the Boob Tube has learned justice and truth is more miss than hit and that is if it was not clubbed to death. The Norfolk police found NOTHING and wrapped it up in a big red POLITICALLY CORRECT bow.

  63. Gail Combs says:

    izen says:
    July 27, 2012 at 8:48 am

    …. I do not want to ‘believe’ anything, I want to find the best {BEST?} data and analysis done by the most competent scientists so that I have the best understanding of the issue….
    ___________________________________________________
    Then I suggest you read this from a NASA engineer: link and look at this graph and this graph and this graph.

    As well as these graphs and this graph.
    This is a set of data the “Team” forgot to manipulate.

    And that is only the tip of the iceberg. The Hockey Stick wiping out the temperature cycles hasn’t stuck an more than the crap from the Flat Earth Society. There is just too darn much evidence and the lump under the rug looks like the Rocky Mountains.

  64. izen says:

    @- Gail Combs
    “HA HA HA HA – ROTFLMAO! you have got to be kidding.
    …. The Norfolk police found NOTHING and wrapped it up in a big red POLITICALLY CORRECT bow.”

    The grossly exaggerated ‘LAUGHTER’ and claim you were rolling on the floor as a result of my reply makes me suspect you are one of those people who basks in the sense of self-superiority of regarding all and every official announcement as part of a grand conspiracy to fool the public.

    I am well aware of the ineptitude and inefficiency of real life policing compared with the dramatic fiction. But that does not justify categorising every report from officialdom as false, deceptive or intentional fraudulent. It is more rational to assess each on its merits in context without imposing personal ideological assumptions.

    Given the fact that no whistleblower has stepped forward to claim responsibility as an insider releasing the data, along with the politically astute timing of the cyberattack and the other external attempts to subvert other climate associated IT systems in the adjacent weeks there is strong circumstantial evidence that the claims by Norfolk police are credible.

    The psychological tendency to view any denial of a particular scenario by an official body as strong evidence for the truth of the claim is unduly cynical and strays dangerously close to tinfoil-hat land.

  65. Gail Combs says:

    izen says:
    July 27, 2012 at 8:48 am

    …The idea that people have a vested interest in AGW is silly. Unless you WANT serious problems with future agriculture and environmental conditions!
    _______________________________
    That has to be the most laughable of your statements.

    The multi-national corporations owe no loyalty to any country and are only interested in PROFIT. As one commenter pointed out corporation HATE capitalism because they hate real competition. Corporations sucking money out of tax payers via the government has been around since the gold smiths talked the kings and princes into ignoring the fraud inherent in fractional reserve banking in return for unlimited “Loans” of fiat currency.

    I also suggest you read about the Regulating Class

    So lets take ONE example. Biofuels and grain. (If you do nothing else read this well documented History of US Agriculture since WWII )

    1.) WHO has the political clout?
    Here is an example:


    Dwayne O. (Orville) Andreas, Chairman Emeritus of Archer Daniels Midland Company…, is a member of the Board of Trustees of the Forum for International Policy….

    Perhaps America’s champion all-time campaign contributor is Dwayne Orville Andreas. Although virtually unknown to most Americans, since the 1970s, leading politicians of both parties have been well acquainted with Andreas, his company, and his money….
    sourcewatch

    Another link

    Another company involved is Cargill. Their VP Dan Amstutz wrote the World Trade Organization’s Agreement on Agriculture (1995) and then the 1996 “Freedom to Fail” farm bill that wiped out many US farmers and produced an excess of grain that wiped out third world farmers. for example Mexico lost 75% of their farmers Amstutz then went to work for Goldman Sachs who is linked to the food commodity market speculation that caused the 2008 food crisis

    2. WHO PROFITS? What happened in 2008 and recently as the US and EU economies have nose dived?

    ADM profits soar 550 percent as ethanol margins improve

    Monsanto posts record profits

    Cargill reported record profits of $4.24 billion, beating the previous high of $3.95 billion from 2007-08, and a 63% increase of the $2.6 billion it earned last year

    While many countries starve, agribusiness profits
    ….multi-national agribusiness companies are seeing record profits. Monsanto Company saw its profits double in the last quarter. Archer-Daniels-Midland’s third-quarter profits increased 42%. Cargill, Inc.’s profits increased 86% in the latest quarter. John Deere, which builds tractors, combines and sprayers, saw a 55% rise in earnings in its latest quarter. Mosaic Co., which manufactures fertilizer, also reported a windfall in its latest quarter….

  66. Smokey says:

    izen,

    Best not to fool with Gail Combs. She has her ducks in a row, and she will smother you with facts.

  67. David A. Evans says:

    In business, I see basically two models/

    1) I pay you, I own all the rights to what you do.. (British, perhaps US)
    2) I pay you, you keep the rights but sign an exclusivity deal with me and get a royalty.

    Either way, whoever pays gets the rights.

    Mann doesn’t own the work and even if he did, he could get a non disclosure agreement on the conclusion of no fraud.

    Why is he stonewalling? Don’t know but the very act looks suspicious.

    As an engineer, I had to document what I did. That document had to be freely available for 2 reasons.

    1) if I died tomorrow, who is going to maintain my work? Because there are certainly going to be faults.
    2) If I killed someone because I made a mistake…

    DaveE.

  68. David A. Evans says:

    I’m doing well for getting thrown in the spam bucket today. Last post.Down, down, down.

    DaveE.

  69. R.S.Brown says:

    Izen = old time “concern troll”.

  70. RB says:

    We have had a good look at many FOI/EIR cases over the years in various jurisdictions.

    What never ceases to amaze me is how participants in these cases still produce swathes of information and submissions that are irrelevant to the actual issues.

    Even in this case we are still seeing, from counsel and from Mann, continuing allegations that have no place.

    1) The motives of those who want or will see the documents is “Bad”, as are the consequences of disclosure – Mann mentions how he has been treated by genuinely nasty people who have seen CG emails, and how CG has affected his job, reputation, etc. – presumably as a means of indicating this will happen again if disclosure occurs. We also get the guilt trip about a shy but brilliant student wanting a career in science but who will be turned off by the prospect of people wanting to know what she gets up to – all irrelevant. The court has already made clear its (correct) understanding that FOI has no regard whatever to the motives of those who seek disclosure, (and one would assume it would take the same view about the affect on individuals as a result of disclosure) and yet Mann and counsel continue to push this line. FOI straddles government oblivious to egos, consequences, or sensitivities. In that respect it is designed to be blind and unfeeling, rightly sacrificing the sensitivites of the few for the interests of the many.

    2) The “chiiling effect” argument. Disclosure will chill academic discourse and development (which is arguably untrue and has seen to be so since FOI has been around for many years). This is half of that issue. Non-disclsoure will chill the purpose of FOI – upholding this academic freedom argument will hugely chill the ability of the public to the very access FOI contemplates that they should have – and will give academics (elite and lowly) the same protection as legislators who rightly enjoy a unique protection. Mann’s and UVA’s “chilling effect” argument is one side of a coin. If one or other side is “chilled” that has no relevance to how FOI operates – it may be an intended or unintended consequence of FOI, but does not impact on its operation and cannot logically be an argument that decides how the mechanism of FOI operates. It is a consequence of the machine’s operation, not a cog within it. If legislation has a particular consequence that must be taken to be intended by legislators until and unless they change the law.

    The case would be served by throttling these arguments now and going forward without them.

  71. Gail Combs says:

    RB says:
    July 28, 2012 at 4:30 am

    We have had a good look at many FOI/EIR cases over the years in various jurisdictions.

    What never ceases to amaze me is how participants in these cases still produce swathes of information and submissions that are irrelevant to the actual issues….
    ___________________________
    “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.” ~ old lawyers’ nostrum

    They are busy pounding on the table and yelling because they have neither the facts nor the law.

  72. Bill Tuttle says:

    RB says:
    July 28, 2012 at 4:30 am
    What never ceases to amaze me is how participants in these cases still produce swathes of information and submissions that are irrelevant to the actual issues….

    I had jury duty on a civil case about thirty years ago — the plaintiff’s lawyer had three good-sized cartons of papers he wanted to enter into evidence. The judge told the barrister that he’d review them all, and for every page he found that wasn’t germane to the suit, he’d fine the plaintiff $10.

    The look on the lawyer’s face was priceless…

  73. RB says:

    That old adage is well known, Gail. Fact is that any judge can instantly tell where a lawyer is coming from in that regard.

    I have other issues with Mann’s intervention and am frankly surprised at his counsel’s handling of the case. Mann’s recent affidavit, for example. A basic rule of witness evidence is that it is just that – the evidence of the witness. Mann’s affidavit is almost in its entirety nothing more than a re-hash of his counsel’s legal submissions. Mann is arguing legal points in his affidavit. Any newly trained lawyer knows that this is a basic mistake when drafting a witnesses’ statement/affidavit. The judge will already have noted this.

    Where Mann does momentarily stop regurgitating his counsel’s legal opinion, he strays into areas where he will be demolished in cross examination. He quotes all of the flawed inquiries as having exonerated him, repeating the mantra he, and others on his behalf, have been pushing for years. But this oft repeated untruth is now before the court. There is no doubt that the reality is different and cross examination on these points will, if counsel is any good, show him to be bigging up one side of a story and ignoring the fact that the inquiries were flawed and have demonstrably been shown to be so – and so his affidavit is not open and honest in this regard – he will not come out of that particular aspect of the affidavit well.

    Further, he continues the allegations that CG emails were “out of context” and that the way they were released and reported was to make him and colleagues look bad. He invites a line by line cross examination from which he will end up looking like a thin skinned advocate of CAGW who is boorish, rude, and arrogant. I make no comment as to the accuracy or not of such an impression, but he has given decent counsel a great opportunity to leave that impression indelibly in the court’s mind.

    If his affidavit was more honest and less self serving, including for example an acknowledgement that there are different views on the efficacy of inquiries into CG, and acceptance that not everyone who disagrees with his work is a fossil fuel funded shill, etc. etc., his evidence to the court would be much better regarded. But it is not an open and reasoned and grown up exposition of the situation. It is tribal, self serving, and completely one sided. The judge will see this and it will affect his view of Mann and his evidence.

    I really dont think his counsel is much good, in all honesty.

  74. Gail Combs says:

    RB says:
    July 29, 2012 at 5:30 am
    ….I really dont think his counsel is much good, in all honesty.
    _______________________
    My own experience is that you are lucky to find 1 out of 5 lawyers who are actually any good. Many just dump the stuff on their law clerks, many have no real knowledge or desire to do research into the aspects of the law pertaining to your case. And if you have an older lawyer who went to school in the late 1960’s early 1970s you are looking at someone who went into the law to avoid the Vietnam era draft here in the USA and not from any real desire.

    I have a friend (businessman) who finally gave up in disgust and actually went back to school to get a degree in law because he could not find a decent lawyer!

    Lets just hope ATI has a really good lawyer and the judge is honest.

  75. Allan MacRae says:

    Observations:

    UVa is using a baseless First Amendment (FA) argument.

    Why?
    a) To buy time, so the problem can be dumped on the shoulders of the successors to current UVa management, and
    b) in the very faint hope that the FA argument may succeed with the right judge, and
    c) the Mann emails contain information that is highly embarrassing and costly to UVa, its finances, and its academic reputation.

    More fearless predictions:

    UVa’s First Amendment argument should fail in this instance.

    Unless the judge is crooked or incompetent, the UVa/Mann documents will be publicly revealed by the court.

    UVa and Mann will be discredited by the revealed documents.

  76. D. Patterson says:

    The “counsel” or lawyer doesn’t need to be “much good” when you have a judiciary which has dedicated itself to a political cause at the expense of overthrowing constitutional law, substituting the rule of men, and giving lip service to the contrary. Under these circumstances any outcome is possible in a court politically allied to Mann’s patrons.

  77. Bill Tuttle says:

    Gail Combs says:
    July 29, 2012 at 8:10 am
    Lets just hope ATI has a really good lawyer and the judge is honest.

    It appears that ATI’s lead on the legal team has both legal and scientific experience.

    David W. Schnare, Esq. Ph.D. is an attorney and scientist with 33 years of federal and private sector experience consulting on and litigating local, state, federal and international environmental legislative, regulatory, risk management and free-market environmentalism issues.

    Formerly the nation’s Chief Regulatory Analyst for Small Business (Office of Small Business Advocacy), Dr. Schnare has experience on Congressional Staff, as a trial lawyer with the Department of Justice and the Office of the Virginia Attorney General, as senior enforcement counsel at the U.S. Environmental Protection Agency, and as an appellate attorney for private clients.

    http://thehardlook.typepad.com/about.html

    In terms of a recent post, it looks like this may be a case of ATI’s polar bear versus Mann’s seal on the beach…

  78. jdgalt says:

    If Mann follows through with his lawsuit against National Review, all these e-mails will certainly be reached by discovery, regardless of the outcome in the FOIA case. I can’t wait!

  79. Alex Heyworth says:

    RB says:
    July 29, 2012 at 5:30 am

    (Mann) invites a line by line cross examination from which he will end up looking like a thin skinned advocate of CAGW who is boorish, rude, and arrogant. I make no comment as to the accuracy or not of such an impression, but he has given decent counsel a great opportunity to leave that impression indelibly in the court’s mind.

    No need to comment, RB. Everyone, including those on Mann’s side, already knows this is exactly what he is.

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