By: Christopher C. Horner | 11/07/11 8:42 AM

Name-calling is nothing new to opponents of the “global warming” agenda, or whatever it is being called these days.


We even require “war crimes trials for these [expletive deleted] -- some sort of climate Nuremberg,” according to Dave Roberts, writing in Grist Magazine.


Greenpeace distributed my picture and those of a few others - notifying the troops of what we looked like was for some reason very important - on posters at UN negotiating sessions I attended, and in its “Field Guide to Climate Criminals.”


Ad hominem as a substitute for argument is an environmental activist’s staple. The odious, morally loaded “denier” comes to mind. Then there was that unfortunate, if logical extension of the intimidation, posting the photo of one academic researcher on-line with the label “Mass Murderer.”


It worked. She left the field. Who can blame her? So, actual harassment does exist, if not as is now fashionably decried.


Lisa Jackson, President Obama’s Administrator of the U.S. Environmental Protection Agency (EPA), just added her curious two cents at Berkeley law school:


"One of the things that drives me nuts are… you know… we have scientists being sued, we have climate scientists who are being persecuted, prosecuted, through persecuted by prosecution, by doing, for doing their job. I think that’s, I think that’s criminal."


Unless I’ve missed some new entrant to the field, Jackson’s overwrought, inaccurate and otherwise now-typical characterization was of a request now before the courts that I and two colleagues made under the Virginia Freedom of Information Act (FOIA).


You may recall the Climate-Gate leak of around a thousand emails, each subject to at least one and typically three different FOIA laws. Subsequently, we Virginia taxpayers sought records of one of the principals, Dr. Michael Mann, from his time at the University of Virginia.


Such FOIA requests are neither harassment nor persecution. As the Supreme Court declared: "FOIA is often explained as a means for citizens to know what 'their government is up to.'"


For those choosing to live off the taxpayer, FOIA requests are a condition of employment. Even academics sign up for them when accepting their job. At the University of Virginia, that is literally true, where faculty sign the “Use of Electronic Communications and Social Media: Certificate of Receipt.”


But now the terms of employment of certain individuals must be revised, retroactively, before the law ends up being evenly applied without regard to the political correctness of the requesting party, or subject of the request.


Although legally immaterial, these considerations suddenly dominate. A recent Washington Post editorial, for example. supported the FOIA in principal, but stridently opposed our particular request.


Apparently for the Post, the FOIA laws were drafted by a certain class of people, for a certain class of people; others using them is regrettable to the point of being abusive, and should be disallowed.


You would not know this reading the Post editorial or listening to EPA’s Jackson, but history actually began somewhat earlier than with our request. Consider:


* Two 2009 requests of the very same University of Virginia for records and emails of academic scientists, one of whom was ultimately forced out as state climatologist by a non-scientist politician who did not share his views on climate science.


* A request of the University of Delaware for the records and emails of an academic scientist, also subsequently ushered out as state climatologist.


* Requests of the University of Alabama-Huntsville for the records and emails of two academic scientists.


* Requests of Harvard-Smithsonian for the records and emails of two academic scientists. In turning over requested emails Harvard-Smithsonian acknowledged that, while not actually covered by FOIA, it wanted to comply with the spirit of the act.


Smelling salts, anyone? Further shocking, the subjects of each of the above requests were climate “skeptics.” First, they came for the emails of the climate skeptics; not liking the climate skeptics, I said nothing...


Closer to home, a USA Today reporter was provided emails of a researcher at Virginia’s George Mason University, and even pre-publication correspondence with a journal editor. Naturally, the academic had published work critical of the Mann team’s statistical methods and use of “pal review.”


You may detect a pattern here as to what are acceptable uses of FOIA, and which represent grave threats to science, the academy and the republic.


Yet, unless you read USA Today, you likely know none of this, as there was no outcry in all those right quarters now searching the emanations and penumbrae for undiscovered constitutional rights, and scrambling of the activist machine to ensure the FOIA law is not applied.


Yes, it is true that Mann is suing a Canadian climate scientist for joking, given Climate-Gate’s revelations, that Mann “should be in the state pen, not Penn State.”


Possibly that is what informed Jackson’s broadside. Somehow I doubt this. She was arguing not identity politics, but Identity Law, somewhat more threatening than a FOIA request.


The current outrage of which Jackson is only the most recent purveyor is directed at just one in a long, un-protested series of similar FOI requests. On its face, this appears to be an effort to protect select individuals, a select cause and a nearly unprecedented revenue stream.


That is not legitimate grounds for policymaking. To bow to that is the abuse of the FOIA.


The FOIA laws are tools to protect the taxpayers, by their terms to be applied without regard for political sacred cows, construed liberally in favor of disclosure and interpreting exemptions narrowly. Not to be reinvented as certain, correct constituencies find the moment requires.


Christopher C. Horner is an attorney in Washington, DC, pursuing several "climate" related freedom of information requests.

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