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TomPaine.com: Hot Air and Free Speech

April 18, 2006
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By GAP Legal Director Tom Devine and GAP Investigator Tarek Maassarani.

Climate change scientists have earned Washington D.C.’s highest compliment—being treated like political threats to those abusing government power. That makes them whistleblowers, however involuntary, and a bureaucratic endangered species. That also triggered the two related responses to any serious dissent—shift the spotlight from the message to the messenger by smearing the latter, and engage in strategic retreats through rhetorical reforms with as little substance as possible. These cynical tactics have polluted the increasingly heated debate on global warming the last few months. The good news is that these early attacks often are the first signs of necessary changes to come.

This time, the spark occurred when Dr. James Hansen, the government’s top climate change scientist, just said no to censorship. A 34-year career civil servant, he leads climatology research at NASA's Goddard Institute for Space Studies. Last December he publicly warned that 2005 was the hottest on record for the last 120,000 years and spelled out the dire consequences for society if we continue business as usual another 10 years.

Hansen warned that without a social overhaul to flatten carbon emissions, earth will reach a tipping point beyond which it is too late to stop glaciers from melting, with temperatures over the next century increasing four to five degrees Fahrenheit. The last time Earth was that hot, some 3 million years ago, sea levels were 80 feet higher than today. Florida was largely underwater, and coastlines were up to 50 miles inland, exiling most of today’s concentrated populations. Katrina disasters would become the rule rather than the exception, with cities continually rebuilding above a transient water line.

NASA reacted hysterically, placing Hansen under “administrative house arrest.” Political appointees boasted they would “make the president look good” by imposing blanket prior restraint, denying interview requests, announcing that agency-selected replacements would substitute for him, and threatening “dire consequences” if he disobeyed. Hansen declined to be silenced, and went on "60 Minutes" and other national media outlets. After a spontaneous wave of solidarity from peers, politicians and the editorial pages, NASA blinked—claiming the entire episode was a mistake.

This began a public relations good cop-bad cop routine. A reliable cadre of pundits acted as shock troops to kill the messenger’s credibility. Columnists George Will and Robert Novak fired a volley of cheap shots attacking global warming generally and Hansen personally.

Simultaneously, NASA is playing the role of good cop whose beat is the high road. On March 30, Administrator Michael Griffen unveiled a new media policy and lofty commitment “to a culture of scientific and technical openness.”

But fine print turns the new reform into a trap. Formally, Hansen could still face “dire consequences” for repeating his actions, although that threat is what first sparked the new policy. The so-called reform violates the Whistleblower Protection Act (WPA), the Anti-Gag Statute and analogous good government laws.

The gags remain sweeping, but the newly recognized rights are undefined in scope and context. While recognizing the existence of government employees’ First Amendment right to express personal views, the policy doesn't announce the circumstances when that right cancels out conflicting restrictions, which are phrased in absolute terms—such as any “activities” with “the potential to generate significant media, or public interest, inquiry.” This leaves a cloud of uncertainty that translates into a chilling effect for scientists.

The policy bans anonymous disclosures, controls the timing of information’s release and institutionalizes prior restraint censorship through "review and clearance by appropriate officials" for "all NASA employees" involved in "preparing and issuing" public information. This means that scientists can be censored and will need advance permission from the "appropriate" official before anything can be released.

One hopelessly illegal loophole subjects scientists to prosecution or termination for disclosing unclassified information that is “sensitive.” In bureaucratese that means virtually anything, and at the National Oceanic and Atmospheric Administration (NOAA) has been applied to “leaks” of politically-awkward climate change research.

Most disturbing, NASA may have more scientific freedom than other relevant agencies. Other agencies don’t even acknowledge the right to express personal views. At one EPA region, since 2004 employees must “refrain from answering media inquiries” and are banned from initiating any contact with a reporter, to “prevent EPA management from being surprised by news coverage.” In another, scientists can’t respond to any “potential political inquiry”—again virtually everything.

NOAA issues press releases endorsing scientific freedom. But its policy requires prior approval for any “official and non-official” communications about scientific research “involving NOAA programs or activities” or that “may result in media interest” or “concern controversial issues.”

How do these gags deceive us? NOAA asserts that there is a scientific consensus that there is no link between climate change and Katrina-like hurricanes, which one top agency scientist rejected as a “bald-faced lie.” The agency questioned another researcher about his answers for an interview request, and denied permission after he previewed there “may be the possibility of a trend” in hurricane activity. Public affairs officers warn scientists not to put words like “climate change” or “global warming” in titles of speeches or posters at scientific conferences.

NASA deserves credit for its symbolic breakthrough in principle. Few reforms are announced cleanly, without troubling loopholes and qualifiers. Further, agency behavior can be influenced far more by leadership’s message, compared to official rules and regulations. The key to whether the announced reform is genuine or phony depends on NASA’s flexibility to clean up the illegal portions and close the loopholes. The public does not have to get burned by what so far is a good-cop-bureaucrats/bad-cop-pundits public relations campaign.

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