Bishop Hill More from Sir Muir and his team
Apr 17, 2010 Climate: Russell David Holland writes with the latest update on the bizarre attempts by the Russell inquiry to withhold publication of his evidence.
The Russell ICCER emailed me again yesterday. Unfortunately I left early this morning and was not able to report this until now.
Dear Mr Holland,
Thank you for your reply.The CCER website indicates that the Review reserves the right to withhold publication of submissions if they are potentially defamatory. We have been advised that there would be a significant risk of legal action if your submission is published in whole or in part on the Review website.
As you can appreciate, the Review has received an extensive range of submissions. In terms of transparency and openness the aim is to publish all material as quickly as possible. The Review is unable to verify the factual accuracy of submissions and correspondence prior to their publication.
Further to the suggestion I made in my previous email, I note on the Bishop Hill Blog that you would be content to send a copy of your submission to interested parties using an email address you have established for the purpose, subject to your terms of confidentiality and distribution. I therefore write seeking your permission to reproduce the email address you have set up for this purpose on the Review website.
I believe that just posting my contact details without any explanation would not be open and transparent as we were promised. It is important that the nature of the evidence I gave should be published by the review even if they are not to investigate it. The global public will then be able to see whether this enquiry is thorough and balanced. Accordingly this is my reply.
Thank you for your email.
I was in the course of preparing a letter for you to publish in lieu of my original submission, which mentions no individuals but does identify the nature of my original submission and includes a contact email address. I will also submit as evidence of my attempt to provide a right of reply, correspondence in which I asked the main individuals in this matter to explain the facts that I have reported to the ICCER. I will try to get it to you asap but would like some answers from you first.
Please can you tell me how many other submissions you have declined to publish on the same basis that you say prevents your publication of mine. You say you are unable to verify the factual accuracy of my submission. Have you checked out all the references I gave you? Can you tell me how many of the individuals, who I have named in my original submission, you have contacted and how many have disputed what I have said? Can you give me the numbers of just two or three paragraphs which you say are potentially defamatory or are disputed? Did you let the Royal Society have access to my submission?
I have just downloaded the submissions that you have published and searched on the term "Ammann". Other than mine, it appears in just 7 of the 46 submissions and, in all but two, only in references to published papers. In the other two by Stephen McIntyre and Ross McKitrick, who were directly involved in the matters I reported, perhaps wisely, they only touched upon the matter leaving it to me to deal with the detail. Michael Mann, who usually has plenty to say on these matters, makes no comment at all on Wahl and Amman 2007, despite the fact that the substance of my complaint is well known to him, as the emails show.
As it stands, therefore, you have published no evidence that relates to one of the most damaging emails:
"Mike,
Can you delete any emails you may have had with Keith re AR4? Keith will do likewise.
Can you also email Gene and get him to do the same? I don't have his new email address.
We will be getting Caspar to do likewise.
Cheers
Phil"
Without a proper published evidence based investigation of this email your review will rightly be dismissed as a whitewash. As you have mentioned, I have, on a confidential basis, invited a number of people to review what I have submitted to you and indicate any parts that are not entirely correct and justified from the published documents. I am still waiting for anyone to point to an error of any sort.
One reply, from a well respected published climate scientist, I will share with you. It is:"Hi David, this is the most powerful thing I've seen on Climategate. You've struck at the heart of the matter, the IPCC. The other investigations are dancing around this point, focusing on whether CRU science is sloppy or not, etc. You need to get this out there. Your points extend far beyond the two East Anglia enquiries, but the CRU/UEA folks are obviously involved here."
I look forward to hearing from you.
As a reminder, if any BH reader wishes to see, in confidence, the submission, which the ICCER is frightened to publish and undertakes not to distribute or publish it, please email me at crusub@tesco.net.
I believe I have replied to all so far but if any of you have emailed and not had a reply, within 12 hours, please send again.
Reader Comments (21)
7. Recent public discussion of climate change and summaries and
popularizations of the work of CRU and others often contain oversimplifications
that omit serious discussion of uncertainties emphasized by the
original authors. For example, CRU publications repeatedly emphasize the
discrepancy between instrumental and tree-based proxy reconstructions of
temperature during the late 20th century, but presentations of this work by the
IPCC and others have sometimes neglected to highlight this issue. While we
find this regrettable, we could find no such fault with the peer-reviewed papers
we examined.
http://www.uea.ac.uk/mac/comm/media/press/CRUstatements/Report+of+the+Science+Assessment+Panel
Well done David - whatever you've written has given someone the shivers. Given it's been checked by a number of third parties who have not suggested alterations it's mighty strange the Russell panel has refused to publish. The presumption has to be that you've stepped on some particularly tender toes. But this strange behaviour does give you valuable publicity. I'll be emailing you having pressed Create Post.
Thank you to all of you for your interest. I've sent the submission out to about 30 of you in the last two hours. I shall be turning in for the night and carry on in the morning. If you think I've missed you send again.
Publish it in the US -- you can claim that you were hacked and some nasty person stole it and put it up without your permission. That way it will be under US libel law, which permits a good deal more.
Sadly, they might be right about English libel and slander law which is designed to protect the guilty.
Another solution is to rename everybody, as Subject A, Subject B, Subject C. At University X, etc.
I have examined Mr Holland's submission. If there is anything that damages any reputations in there, it damages the reputation of the CRU and the IPCC, not any individuals. Individuals at the CRU who acting in their capacity as IPCC authors tried desperately to get certain papers cited, damaging their own reputations.
The emails reveal what has transpired in reality. They are prima facie evidence - the UEA has confirmed to the general public the veracity of the emails.
Any exculpatory text about the emails, which does not misquote or change the literal words in the emails, which forms part of an invited submission, to a panel which committed itself to transparency a priori - therefore - cannot be defamatory or libelious, by definition. Mr Holland's submission was in response to the open invitation by 'the Team', not a de novo</> action.
In other words, before gagging Mr Holland, we should ask a few questions to the scientists at the CRU - asking them to explain *their own words*, no more !!
The UEA/CRU are getting clever, that is all. They raise the scepter of lawsuits to wriggle out of their own conundrum. They have retained good counsel no doubt.
I agree with the comment by the climate scientist in the head post, but I think it also points to Muir’s problem.
I can see that the panel will be unwilling to publish submissions that reflect on the conduct of persons beyond UEA and it’s staff.
Muir is operating, legally, in terra incognita.
The enquiry panel is Ad Hoc – that is an informal tribunal to whom certain persons have submitted and in whose acts they have acquiesced. Acquiescence, and probably qualified privilege, are their defence to actions for libel brought by those persons. Who are they – well UEA as a body corporate, perhaps members of it’s staff, we don’t know. No announcement has been made about any agreed legal framework for the UEA, it’s staff and the enquiry. Certainly it doesn’t include the staff of any other institution in any country in the world. As the members of panel are not “judicial” they do not have immunity from suit, nor do people making submissions to them. Publication of submissions on the internet constitutes publication in the jurisdiction of every court having libel jurisdiction in the world. So, Muir and the panel are at risk of being sued personally, potentially in any country in the world, for any alleged libel they publish.
I expect UEA have indemnified the panel against any and all liabilities arising from their conduct of the enquiry and this indemnity is crystallised in a massive insurance premium. The insurers would normally appoint the lawyers who approve submissions for publication. They would wish to redact any reference that could be construed as reflecting discredit on anyone else anywhere in the world who has not acquiesced in publication – in short almost everybody implicated in ClimateGate.
Any submission putting the conduct of the staff in it’s full context is likely to fall foul of the lawyers.
The same considerations will apply eventually to Muir’s published findings. They will attract no more privilege than a letter of reference from an old to a new employer and will need to be couched in similarly neutral terms. They will be vetted by the insurer’s lawyers to remove most of the context, this will include any adverse reference to others, including members of the Hockey Team.
I'm wondering whether a body's being vulnerable to putative libel suits would be better or worse than being alleged co-conspirators after the fact.
I guess you could publish it on Wikileaks without any risks....
The three 'inquiries' seem to have been constructed in such a way as to leave the widest possible cracks between them through which damaging material can fall. To be expected, perhaps, but rather frustrating.
There is probably some over-indulgence in the superlative in David's submission. I have little (read: no) doubt that the conclusions that David draws in the submission are reasonable and rational, and would parallel a legal conclusion. That isn't where I think there could possibly be an issue. It's more in the language used, and more specifically the additional language that alludes to motive. I think the facts as collated by David are damning, and they can be served without the extra flowery stuff.
It would be possible and probably wise to edit the submission, removing the extraneous language to create a submission where there could be no excuse for exclusion nor any possible way to refute its content.
I hope UEA/CRU will learn something from the Simon Singh/Chiropractic fiasco.
I have just finished reading David's well thought out tome. It does a very nice job of organizing the Climategate emails. However, I agree with SimonH that There is probably some over-indulgence in the superlative in David's submission.. That said, it was not libelous by US standards, although it may have been under UK law.
A toning down of a few dozen words would fix that. For example the title:
The Scandalous Corruption of the IPCC AR4 Processes to Protect could become:
Examination of the Questionable IPCC AR4 Processes which Obscurate
It is a very through guided tour of the Climategate emails and should be published.
Perhaps SimonH -- who does have a wonderful way with words and is a careful writer -- and I could help David make his submission more "palatable". I am retired and have finally finished rebuilding my car's transmission so I have little to do except write Irish Fairy Tales. :)
The Bishop knows how to find me, as does David.
I'd be happy to help where I can, Don Pablo de la Sierra and David! :) I wish I were retired, though, and just Friday accepted a new month-long work contract. One dog, no kids, no wife (the pillow-over-the-face trick doesn't work, by the way.. had to resort to divorce) so I have my evenings available :)
David, if you would like a few friendly, extra eyes on your submission, feel free to provide Don Pablo my email address too. We can make recommendations for a few paragraph rewrites which you're perfectly welcome to adopt if you feel they're appropriate. :)
David, if you would like a few friendly, extra eyes on your submission, feel free to provide Don Pablo my email address too. We can make recommendations for a few paragraph rewrites which you're perfectly welcome to adopt if you feel they're appropriate. :)
Your call, David. But I see why they took the position they did. Just look at your title: It is belligerent. You can also send my email to SimonH.
bobdenton
I have finally read your submission several times and understand it. While I have a background in US corporate law, I am no lawyer, nor to I understand the fine details of British law, let alone some of its major points.
Thank you for your analysis. I did find it most edifying.
What you are basically saying is that there is no way they would deal with anything outside of the UEA domain. Sounds like David needs to chop down his submission to limit it to the UEA and its staff.
I'm all for tightening David's text, with his permission. Good luck everyone.
Shub rightly mentions the Simon Singh case and out of court settlement, which is very relevant to the current consideration on UK libel law. One of the most prominent supporters of Singh and of libel reform is dear Mr Stephen Fry, who's kindly invited me for lunch next month, partly to discuss what I've been calling the Open Climate Initiative. I've been following the UK libel reform debate since a visit to New York prompted an exchange of emails with Rachel Ehrenfeld five years or so ago. Fry and Ehrenfeld ... rather different points on the political spectrum there, yet united in their critique of UK libel law. I'm saying it's time for the same kind of coalition to be built to lobby for total openness of climate science internationally. It shouldn't be - and in fact isn't - a few right-wing bigots and oil company shills that believe in that kind of transparency, as was made clear when I made the same point publicly at the UK HQ of libel reform, Free Word, in December and George Monbiot almost fell over himself agreeing (with many others like the chairman John Kampfner evidently also very sympathetic).
I'm going to be chatting with the Bish and a few others about this, ahead of Fry, but ideas from anyone - especially on how far one can and should go with 'open review' compared to the current peer review system, in the Internet age - would be greatly appreciated. I've not been part of peer review in the scientific world, unless you count papers for software conferences and I feel the need for that perspective. My blog may be best for responses on this. I'll do at least one more post on the subject in the next few days. Feel free to ignore the more techie bits, which are designed to stay in touch with UK segments of the open source movement as well as 'keep my arm in' with some key emerging areas. Soundings I've made with open source software people since February on Climategate show incredulity that anyone should act in this way in this day and age. There's a very large constituency we need to tap into and I have I hope some helpful ideas on how to do that. It could get interesting. But step at a time.
I have been looking at David's work. Basically, it is an indictment of the IPC, UEA, AGW. It is fairly well done, but not appropriate for the Muir whitewash. Bobdenton lays out a very well argued rational of why Muir could not accept David's paper. Therefore there needs to be two versions: one to be cleaned up as is and published standalone, and a refined version dealing solely with the activities at UEA for the Muir commission.
From what I understand, the latter version could be accomplished by simply removing the names of any organization or person not under the aegis of the the UEA. That can be accomplished with a global replace of the name with "[person 1]" and "[organization X]". This would be necessary because many of the quotations are from the leaked emails, which if published by the UEA, could lead to law suits. We do need to protect them, don't we? :(
However, Richard is correct. This is David's work, and he has to have complete control of it.
Perhaps bobdenton could comment pro bono to make a Latin pun. :)
David's submission is certainly damning; a forensic evisceration of the people and practices involved. And that's the problem. The UK's libel laws and their precedents make this sort of thing (the plain truth, forcefully told) extremely risky.
However, as some posters have pointed out, it wouldn't take much to reduce the exposure to litigation. Mainly, it is about ascribing motivations to the actions. Far better to just state what happened, and to exclude language that describes the actions as reprehensible.
I see that SimonH and Don Pablo have offered help with a redraft. David, I'll put my hand up too if you need any wordsmithery. It's my job.
Thanks GixxerBoy. It's up to Dave.
Bobdenton, thank you for your valuable advice. Don Pablo, Simon H and anyone else that wishes to help, I will be happy to send you the Word 2000 file. Having done this sort of thing before it is best if this is done with "tracking" on and in a sequence so everyone does not do the same thing and leave an argument over which is best.
So if you if you all email me, I will send the Word file to you all and the email addresses of the editing team in order of getting them (but only up to four) so everyone knows whose turn it is and leave you to it. If you have to change what someone else has already changed justify it in an email note. If one of you wants to go first, or last tell me or the order is as I get your emails or you negotiate it among you. To be fair in case anyone is off-line today I will wait 24 hours to hear from you.
I have major task to get done by the Friday for an Information Tribunal Appeal and so will not get involved more than I need to.
I need to go back and count again but, thank you to more than 100 that have asked to see the "Forbidden Submission".
I have not heard anything further re. David's submission. Can anyone advise me where I can keep tabs on the up to date situation