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May 20, 2010 The Honorable Kenneth Cuccinelli, II Office of Attorney General Dear Mr. Cuccinelli: As attorney-members of the House and Senate Courts of Justice committees, and as other attorney-members of the House of Delegates and Virginia State Senate, we write to express our concern over your office’s recent filing of a Civil Investigative Demand (CID) directed at the University of Virginia under Virginia Code Section 8.01-216.1 et seq., the Virginia Fraud Against Taxpayers Act (FATA). We believe this action represents an unprecedented interference with academic freedom and an infringement of the First Amendment rights of scientists and private citizens under the United States Constitution. FATA was passed by the General Assembly in 2002 to address potential Medicaid fraud in the Commonwealth and out of concern that unscrupulous providers might inappropriately use taxpayers’ monies. It was never envisioned as a tool to gather information against citizen-scientists with whom agents of the Commonwealth might disagree. Yet, it appears that your use of the CID is just that – an effort to gather information designed more to make a political statement rather than to discover fraud. Some of us believe strongly that climate change is being exacerbated by human activity; others of us fall into the category of climate-change skeptics because we think scientific arguments for man-made climate change are exaggerated and therefore should not be used as a basis for fundamental policy changes. But whatever our political perspective, we believe that, in a free society, the state should allow scientists to pursue their inquiries, and that their conclusions are better tested by scientists than by politicians. We fear your CID moves us in the opposite direction; it will effectively discourage scientists and researchers in the Commonwealth from research for fear that they could subject themselves to a lawsuit brought by the state. This is not to say that scientists should not face public or private scrutiny; they should. And it is perfectly appropriate to raise issues about whether taxpayers should fund certain research. A CID is not the appropriate way to raise such issues. Any grants awarded to Dr. Mann that are subject to the CID were given years ago; if the Commonwealth did not want to support them, the time to do it was then. Beyond that, there have been at least three separate inquiries which asked whether Dr. Mann falsified his data, precisely the issue that you imply by the CID. In 2006, U.S. Representative Joe Garton (R-Texas) held hearings on this issue. During the hearings, Dr. Edward Wegmann of George Mason University concluded that while statisticians could differ on interpreting the data used by Mann, he “saw no evidence that Mann committed fraud or deception.” The National Academy of Sciences reached a similar conclusion: “There are some things he (Mann) could have done better, but there’s no fatal flaw.” A 2006 National Research Council report found that Mann’s conclusions have been supported by “an array of evidence” and following the release of certain climate change emails (none of which were allegedly written or received by Dr. Mann), Penn State University completed an extensive inquiry into whether Mann had manipulated or destroyed evidence to bolster his findings. It concluded that he had not done so. The Penn State investigators read every one of the 337 disputed emails and interviewed Dr. Mann extensively. They consulted with other respected scientists in the field of climatology, and concluded: “After careful consideration of all the evidence and relevant materials, the inquiry committee finding is that there exists no credible evidence that Dr. Mann had or has ever engaged in, or participated in, directly or indirectly, any actions with an intent to suppress or to falsify data.” See (http://www.research.psu.edu/orp/Findings_Mann_Inquiry.pdf). While your CID does not explicitly state any reasonable basis for a fraud against the taxpayers, arguably a precondition for the use of the statute at all, your CID is unprecedented in the breadth of its scope, commanding the University to produce a swath of materials, including emails from over forty scientists who worked both at UVA and around the world as well as from other private citizens who may have little relationship to Mann’s work except that they may have received or sent an email to him. Those of us who value the rights of individuals to be free from unwarranted intrusions of our government are extremely troubled by the scope of this inquiry. Even if one were to believe that Dr. Mann does not meet the standards of the profession in interpreting the data, how does that become fraud? And if the state intrudes on the scientific community’s ability to test and judge through peer research, and upon the academic freedom that we cherish and which has led to many of the social and scientific breakthroughs that have made this country the greatest in world history, we will be left with a politicization of science, where the only ideas pursued are those which curry favor with the political elites – whether right or left – in control at the time. This will chill the environment for scientific research and disadvantage the Commonwealth in its efforts to recruit the best and brightest to our universities and research institutes. We respectfully request that you withdraw your CID and focus on other more pressing duties of your office. Sincerely, David J. Toscano John S. Edwards Eileen Filler Corn Lynwood W. Lewis, Jr. cc: Members of the General Assembly (via email)
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