Why you should care
Because science needs a dose of objectivity.
Ian Graber-Stiehl is an intelligence analyst turned journalist. When he’s not researching science, environmental policy and social politics, he’s a tithing member of the church of coffee.
Having done an all-nighter for surgery, Eugene Gu was groggily taken aback by the forceful knocking on his door at 10 a.m. “This is the police,” a voice said. Knowing he had done nothing wrong, the Vanderbilt researcher asked whether they had a warrant, and that’s when things got scary. “We don’t need a warrant; we’re issuing a congressional subpoena.”
For those outside the scientific community, you may be surprised to hear of incidents like these, or learn that American academic institutions and science journalists have lately found themselves screaming “chilling effect,” “war on science” and “witch hunt.” But tuned in or not, legal loopholes surrounding subpoenas, congressional investigations and Freedom of Information Act requests have left science under fire.
Climate change isn’t partisan. Health isn’t partisan — it’s the human condition.
Back in 2005, the National Research Council had just reviewed Michael Mann, Raymond S. Bradley and Malcolm Hughes’ infamous ’98 hockey-stick graph at the behest of the House Committee on Science, Space and Technology, concluding that they “roughly agree with the substance of their findings.” Enter Joe Barton, chair of the House Energy and Commerce Committee and a climate-change denier, who commissioned his own investigation, which resulted in the non-peer-reviewed, climate-change-denying “Wegman Report.” He utilized this as a springboard for a deeper investigation into Mann — a probe characterized by rival House Science Committee chair Sherwood Boehlert as “misguided and illegitimate.”
The wranglings came to a head in 2014. After three years of battling a Barton-esque campaign for his private information and correspondence — some 12,000 proprietary emails and papers were subject to Freedom of Information Act requests — Mann emerged victorious. But only to a point. After legal experts formed the Climate Science Legal Defense Fund (CSLDF) to cover his $100,000 in legal fees, Mann was awarded just $250.
The representatives who use these subpoenas argue they help uphold the First Amendment and that taxpayer dollars are well spent. But those on the receiving end see it as ideologically driven harassment. The FOIA requests that Mann faced are still prevalent for fetal-tissue, climate and genetic-modification researchers. Lauren Kurtz of the CSLDF, which has helped represent more than 100 climate scientists in FOIA cases, says such requests don’t require motive or any legal standard, other than citizenship. “You can ask for whatever you want, and they can be quite burdensome,” she says. Granted, FOIA requests are useful for a wide array of investigations, but they are easily abused, offering private correspondence — wrested from context — that could provide the kind of specious evidence needed to justify a measure currently in vogue: subpoenas.
Mann himself faced a failed subpoena from climate-denialist Ken Cuccinelli, Virginia’s former attorney general. But, as of last year, subpoenas come in a new flavor: unilateral congressional subpoenas. As with all congressional subpoenas, rights we take for granted, like attorney-client or spousal privilege, do not apply. If someone doesn’t cooperate, they can be held in contempt of Congress. The difference? The subpoenas can be issued by a single committee chair — with no other input or votes. This is exactly what a few congressional chairs have started doing: subpoenaing researchers they believe to be inappropriately political or lacking the due objectivity of proper taxpayer-funded research with unprecedented bravado.
Lamar Smith, for example, the (newly reelected) climate-denialist chair of the House Science, Space and Technology Committee, has become a subpoena-wielder extraordinaire. After new research necessitated the correction of National Oceanic and Atmospheric Administration (NOAA) data that previously gave credence to the idea of a hiatus in warming, he subpoenaed NOAA. When a Washington Post article inspired scientists to write a letter to the White House about pursuing Exxon for knowingly obfuscating global-warming research, he subpoenaed one of the researchers. When two attorneys general, the Union of Concerned Scientists, Greenpeace and six other advocacy organizations probed Exxon, he invoked the ire of constitutional experts and scientists across America by subpoenaing all of them.
All the while, Smith — the same man who subpoenaed Hillary Clinton’s server — claimed he was protecting First Amendment rights and private R&D. But he’s hardly the most egregious offender of unilateral subpoenas. That title belongs to (newly reelected) Marsha Blackburn, of the House Select Investigative Panel on Infant Lives, who has subpoenaed more than 80 researchers amid her investigation to see whether Planned Parenthood was selling fetal tissue for profit.
Gu was among them, and while abortion is often labeled a partisan matter, researchers like Gu are using tissue that would otherwise be discarded as medical waste. He’s trying to shorten organ-transplant wait lists and [colleagues of his are] developing treatments for Zika. And, as he puts it, “Climate change isn’t partisan. Health isn’t partisan — it’s the human condition.”
Without an amendment, FOIA laws and unilateral subpoenas will continue to arm what I see as an organized campaign for ignorance and obfuscation. More perversely, they erode incentives for tomorrow’s young minds to pursue politicized public research. Now that Donald Trump has the ability to reform the Justice Department — which has the last word on the enforcement of congressional subpoenas — and the House, Senate and Supreme Court are poised to lean right, as Lauren says, “It’s an increasingly scary time to be a climate scientist.”