Posted by: Barry Bickmore | January 28, 2014

What Precedent? Why National Review et al. Are Running Scared

Whenever there is a big, public legal battle, it seems like the principals spend a lot of time talking about “setting precedents”.  Sometimes this is legitimate, because if you can help it, you don’t want the bad guys to get away with any heinous miscarriages of justice.  But in other cases, all the talk about “setting precedents” is just so much public posturing.  Of course, both sides will accuse the other of posturing, but if you pay attention, sometimes it becomes apparent which is which.  I believe this is now true for the Mann v. National Review et al. case, for instance.  (The defendants are the National Review, the Competitive Enterprise Institute, Mark Steyn, and Rand Simberg.)

Climate scientist Michael Mann has been hounded for years by ultra-right-wingers who JUST KNOW, based on a single, innocuous phrase taken out of context from a stolen e-mail, that he must have done something fraudulent when preparing his famous “Hockey Stick” paleotemperature reconstructions… even though a number of subsequent studies by other groups, using different data types and different statistical techniques, have essentially confirmed that the “Hockey Stick” was about right.  Some of the crusaders trying to stick it to Mann, such as Virginia AG Ken Cuccinelli and the American Tradition Institute, have tried (without anything approaching “probable cause”) to legally gain access to Mann’s e-mails and other documents, so they can go on a fishing expedition to find anything incriminating (or at least embarrassing), but Mann and the University of Virginia chose to fight this.  Why?  Because it sets a bad precedent to let people (especially those who have demonstrated themselves to be zealots) to go invading your privacy with no cause.  Scientists shouldn’t have to worry about being slapped with some onerous demand for all communications and documents about whatever they have been up to, unless someone has some reasonable cause to think something’s wrong.  Otherwise, it would be too easy to abuse the system to persecute or slow down researchers producing results that are politically unpopular in some quarters.

Naturally, Mann’s enemies have labeled this as posturing.  If he REALLY had nothing to hide, he wouldn’t mind letting barely educated zealots comb through all his documents trying to find anything they can use against him, right?

But then something interesting happened. Writers for a couple of Mann’s most persistent critics, the National Review and the Competitive Enterprise Institute, came right out and called Mann’s work fraudulent, and said that he had manipulated his data for political purposes.  Mann threatened to sue, and they told him to buzz off.  The way Rich Lowry of the National Review did so was interesting, because it brought up the old specter of being able to comb through Mann’s documents, which they KNEW he didn’t want!

Usually, you don’t welcome a nuisance lawsuit, because it’s a nuisance. It consumes time. It costs money. But this is a different matter in light of one word: discovery.

If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging. So if he files a complaint, we will be doing more than fighting a nuisance lawsuit; we will be embarking on a journalistic project of great interest to us and our readers.

And this is where you come in. If Mann goes through with it, we’re probably going to call on you to help fund our legal fight and our investigation of Mann through discovery. If it gets that far, we may eventually even want to hire a dedicated reporter to comb through the materials and regularly post stories on Mann.

My advice to poor Michael is to go away and bother someone else. If he doesn’t have the good sense to do that, we look forward to teaching him a thing or two about the law and about how free debate works in a free country.

He’s going to go to great trouble and expense to embark on a losing cause that will expose more of his methods and maneuverings to the world. In short, he risks making an ass of himself. But that hasn’t stopped him before.

The climate change contrarians rejoiced!  “Go for it Mike, we all look forward to the enlightenment of discovery!…” chortled Anthony Watts, in a post charmingly entitled, “Yay!  Mike Mann took the bait, intends to file suit against Steyn and NRO” .  “I think Steyn just went to COSTCO with the NRO credit card to get the industrial strength size can of whupass he’ll be opening”.

But Mann did proceed with the case.  Oh sure, Lowry allowed that Mike Mann might do so, but if Mann were too full of hubris and stupidity to understand the ramifications of a discovery process, why would he have have fought so hard against the Cuccinelli and ATI fishing expeditions, if he really had something to hide?  No, he knows exactly what the discovery process entails, and he doesn’t care.  In other words, all that talk about setting a bad precedent by letting the fishing expeditions proceed was not mere posturing.  Mann meant it, and he really is not afraid of them finding anything too damning.

But wait!  The other side was SURE they would find all kinds of damning material during discovery, and Mann was falling into their carefully crafted trap, right?  Wouldn’t they want to head right into discovery, so they could open that big ‘ol can a’ you-know-what?

The defendants immediately began filing motions to dismiss the case as a frivolous attempt to stifle their free speech.  (The acronym is SLAPP–Strategic Lawsuit Against Public Participation.)

Huh?

Well, you know, because it would set a bad precedent.   Defendant Mark Steyn explained, with respect to one of those motions:

Many “climate skeptics” wonder why the defendants would want to get the complaint dismissed rather than put Mann through a trial in which he would have to take the witness stand and discuss his work under oath. I can understand their enthusiasm for this but for me the priority has always been the broader cause of free speech:

“Defendant Steyn stands by his words and is willing to defend them at trial and before a jury, should it come to that. However, as a noted human-rights activist in Canada and elsewhere, he believes that the cause of freedom of expression in the United States would best be served by dismissing the amended complaint, and that a trial would have a significant ‘chilling effect’ in America of the kind the Anti-SLAPP laws are specifically designed to prevent.”

The “chilling effect” is a bigger threat to civilized society than all Dr Mann’s warming. But the judge chose instead to put us on the road to a full-scale trial. So be it.

Well, that makes sense, I guess.  We wouldn’t want to threaten civilized society by letting this thing go all the way to trial.   Right now, I understand that most of the defendants are filing an appeal to the judge’s current ruling, in which he refused to throw out the case.  Mark Steyn, acting as his own counsel, has now petitioned the court to remove his name from the appeal, however.

I certainly don’t know all their motivations, but one thing is clear.  All that tough talk about rejoicing at the possibility of sifting through Mann’s documents was just so much public posturing.

Here’s what I think is going on.  (Feel free to attack the following points in the comments.)  In general, defendants in a slander or libel case have five possible defenses, four of which are summarized in an online legal dictionary like so:

In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confers Immunity on a small number of defendants who are directly involved in the furtherance of the public’s business—for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.

The fifth defense is to argue that the statements in question were not, by definition, defamatory.

Since Mann didn’t consent, the publication wasn’t an accident, and the defendants are not in categories that receive automatic immunity, only the defense of truth and denial that the statements qualify as defamatory are available to the defendants.  They have at least implied both possibilities, depending on the situation.

When trying to get the case dismissed, the defendants’ arguments have been about how their accusations do not pass the test for being considered defamatory.  As CEI’s attorney put it,

And regardless of how one views Mann’s work, his threatened lawsuit is directly contrary to First Amendment law regarding public debate over controversial issues.  Michael Mann may believe we face a global warming threat, but his actions represent an unfounded attempt to freeze discussion of his views.

The problem with this defense is that the statements in question weren’t just criticizing Mann’s views, or his work.  Rather, they were specifically accusing him of criminal acts, performed using government funds.  That online legal dictionary I mentioned notes that such accusations, if they are false, automatically constitute libel.

libel per se n. broadcast or written publication of a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis), or dishonesty in business. Such claims are considered so obviously harmful that malice need not be proved to obtain a judgment for “general damages,” and not just specific losses. (See: defamationlibelslander)

Even supposing that Mann’s lawyers can’t get the accusations treated as “libel per se,” and need to prove “actual malice,” that only entails proving that the false statement was made “with knowledge that it was false or with reckless disregard to whether it was false or not”.  (This is exactly what the  judge in the case recently ruled, so it’s not just me and the online legal dictionary making this up.)

I’ll get back to the “actual malice” issue in a moment, but first let’s talk about the defendants’ prospects using the “defense of truth.”  During the initial saber-rattling stage, Myron Ebell (Director of the CEI’s Center for Energy and Environment) said this:

The fact that Professor Mann’s hockey stick research is still taken seriously in the public debate is an indication that people haven’t read the Wegman Report to the House Energy and Commerce Committee, the National Research Council’s report, or the analysis of Stephen McIntyre and Ross McKitrick.

So does this mean they will use the “defense of truth” if the case goes to trial?  One problem with that would be that none of the documents Ebell mentioned accuse Mann of deliberately manipulating his data for political ends.  Oh, you can find a few things to argue that Mann made some minor mistakes that didn’t end up making much difference for his results, or made some data-handling choices that other scientists might not have, but deliberate data tampering is another matter.

But the main problem with the “defense of truth” is that the accusation of deliberate fraud is just stupid.  The basic conclusions of Mann’s Hockey Stick work have been confirmed over and over by other researchers using different kinds of data and statistical techniques, and the data-handling choices some question were openly discussed in the literature.  Mike Mann discusses all this in his book, The Hockey Stick and the Climate Wars, and Myron Ebell mentioned that he was aware of the contents of this book when he made the statement quoted above.

Professor Mann’s political advocacy is no more reliable than his scientific research.  His recent book, The Hockey Stick and the Climate Wars: Dispatches from the Front Lines, repeats numerous factual errors, some of them about CEI.

So if the accusations are stupid on their face, and this had been pointed out to the defendants, it seems to me that it will be hard for the defendants to argue either that the accusation was true, or that they made the accusation against Mann without “reckless disregard to whether it was false or not,” i.e., without “actual malice”.   Maybe they will turn up something in discovery to make the accusation seem less stupid, but Mike Mann doesn’t seem too worried about that possibility.

The above analysis provides at least some of the reasons why I  believe the defendants are feeling little warm trickles down their legs right now.  The judge has already refused to throw out the case, because the defendants’ accusation obviously does qualify as defamation under the law (proving “actual malice” is a matter to be brought to the jury).  They never had anything other than unsubstantiated rumors to base their accusation on, and it had previously been pointed out to them that the accusation was ridiculous on its face.  What’s more, it would be very difficult for any of the defendants to just apologize and settle the case, because their constituency (from which they derive their livelihoods) consists of extreme Libertarian wingnuts, who might abandon the defendants if they appear to compromise with New-World-Order-mandated science.  For instance, yesterday Mark Steyn was busy throwing the ravening wolves a bone, thusly:

On that note, I promise my many kind supporters I will not let you down, I won’t be settling, and the denouement will be way better than “The Good Wife”. It’s time for Michael Mann and the sclerotic DC courts to bring it on or bugger off.

As I see it, the defendants only have four options if (when) their attempts to get the case thrown out fail.  1) They can hope against hope to find any evidence of foul play on Mann’s part during discovery.  2) They can hope against hope that they get a really, really stupid AND Libertarian-leaning jury… in Washington DC.  3) They can hope their wingnut army keeps buying their lines about defending Freedom of Speech long enough to finance all the legal bills and the eventual judgement.  4) In Mark Steyn’s case, he might try what might be a hitherto unknown defense in a libel case.  That is, he could claim that he’s too stupid to even understand anything that has been said about Mann’s work.

No, really.  Mark Steyn recently wrote that he thinks the Hockey Stick is a “climate model” whose predictions have failed to be realized.

In a post at NATIONAL REVIEW’s website, I mocked Dr. Michael Mann, the celebrated global warm-monger, and his ‘hockey stick,’ the most famous of all the late-Nineties global-warming climate models to which dull, uncooperative 21st-century reality has failed to live up. So he sued.

This obviously guts any defense claiming he made the accusation against Mann without “reckless disregard to whether it was false or not,” so what can he do if the flow of wingnut money dries up? So I’m asking you lawyers out there, has this defense ever been tried?  I mean, I sort of doubt Steyn will resort to this, but you know… hypothetically… could he?  That’s a precedent I wouldn’t mind seeing set.

[UPDATE:  Mark Steyn linked to this page with the following comment.  "BONUS! Ever anxious to help, Barry Bickmore (apparently auditioning to be my Javert) suggests that yours truly plead not guilty on grounds of insanity."  No, I suggested he plead not guilty on grounds of… sigh… he's making this way too easy.  It's not even fun, anymore.]


Responses

  1. In New Zealand we have the oldest natural preserved timber in the world namely Swamp Kauri –Over the last 4 decades Dendrochronologists from England Australia and NZ have gone back thru recovered timbers for 151,000 years and found what started in 1981 this so called global warming has occurred 12 times before over the last 150,000 years it is a natural cycle that the earth goes thru not man made global warming based on the almighty dollar

    • Since nobody disputes that natural climate change happens, what is your point?

      • If I may interpret Noel’s remarks, the point, I think, is that nothing in the paleoclimate record suggests that what is occurring today is any different from what is expected to be occurring today naturally. Which is consistent with the hypothesis that human activity is NOT causing what is occurring today. Perhaps this might be view as an Occam’s razor observation. Since AGW is not necessary to explain what is happening today, AGW should be discarded because it ceases to be the simplest explanation for what is happening today.

        • This is only true if you think climate changes are caused by mysterious forces that we know nothing of, rather than physics.

          • Oh dear. Barry. And from a college professor, still worse, maybe even a dues paying member of the American Chemical Society (like me). What do you teach your students?

            Physics cannot predict the solubility of sodium chloride in water from first principles. Even though this is not determined by “mysterious forces”, but rather coulombic interactions, hydrogen bonding, solvent entropy, and a few others. Of course physics cannot predict the future state of an immensely more climate.

            This does not mean that we need to believe in “mysterious forces”. Rather, we scientists understand how complexity can make systems unpredictable, even though all of reality is grounded in physics.

            Barry, learn to say, like a scientists should say frequently, “I do not know”. Sure, climate is bound to be physical law. But anyone who claims that they can connect physics to climate is lying to you,

            Take it from a climate scientist who makes his living worrying about these things. We have no clue why the Earth was warm in the Minoan, then cold, then warm in the Roman, then cold, then warm in the Medieval, then cold in the “little ice age”, then warm now. We can be relatively certain that it does not involve “mysterious forces”. Some have suggested that Krakatoa was involved.

            But we can be certain that up until the latest cycle, humankind has had nothing whatsoever to do with it. And so it is an easy default hypothesis to assume that humans have had nothing to do with the latest cycle. It is, after all, neither in its magnitude nor its tempo, different from what has happened on Earth long before humankind started to burn coal.

            Which is (I think) what Noel was trying to say. And which makes your response to Noel (sorry to say) inane (nothing personal)..

            • “But anyone who claims that they can connect physics to climate is lying to you.”

              Wow. Move on, please.

        • If your claim is “that nothing in the paleoclimate record suggests that what is occurring today is any different from what is expected to be occurring today naturally” then your claim is refuted by the evidence of those old trees.

          MBH98 would be an old and oft-cited paper on that.

  2. So many words. So many errors in logic.

    • So little backing up of Joe’s claim.

    • Since the number you gave was nothing, then I would agree: nothing errors in logic IS “so many errors in logic [as appeared in the ATL article]“.

  3. The issue as I see it is that Mann’s discovery process will demonstrate that all the defendents, without exception – know perfectly well that MBH 98/99 – the hockey stick – is robust science. And what is more, they know perfectly well that in a court of law they will have to stay on the witness stand and be cross examined by expert cross-examiners until they reveal that fact. And if they choose to lie on the stand rather than admit that they know Mann’s science is robust, the same thing will happen to them as happened to Bonsell and others in the Kitzmiller case – the judge will make a finding of fact that they lied when giving evidence, and, having found they are liars, will be obliged to disregard much of their testimony, giving Mann a clear victory. I find it depressing that the defendents behave in the way they do, as they actually harm the case for conservatism. Mind you, I didn’t realise quite how cynical some Conservatives could be until I read this http://www.thebaffler.com/past/the_long_con/

    • Thanks for clarifying the issue. I was until now under the impression that the “hockey stick” graph predicted a steady rise in temperatures from certain point on. I didn’t know it correctly predicted the current a decade and a half plateau, occurring simultaneously with the escalation of CO2 emissions in China and India.

      • The “hockey stick” doesn’t “predict” anything about anything. It is a paleotemperature reconstruction.

        • Thanks for clarifying this part. So it’s merely a reconstruction of the past with no predictive value or implications for the future. So why then is it discussed in the context of future warming/cooling/swinging back and forth at all? And what you’re saying is that it’s been calculated up to some point in the past, and the methodology wasn’t applied since, to see which way the graph line goes from the tip of the original hockey stick on? Well, interesting. I was under the impression that Dr. Mann’s position was that there were some implications.

          • Hi again,

            Thanks for listening to my explanation. Here’s how the Hockey Stick got to be such an issue: public debate is on a different planet than scientific debate.

            In the scientific world, the HS answers the question, “What has the global (or at least hemispheric) temperature been doing for the past several hundred years?” Given data like Mann’s and other reconstructions, you can make a sort of hand-waving argument that says that it sure looks like something different is going on now, than was in the relatively recent past, and right now it looks to be the hottest in several hundred years and rising fast. But on its own it can’t really show that humans are to blame. To do that, you have to make arguments based on physics, with which you can EASILY show that humans are causing at least a large part of the recent warming. Greenhouse gases do absorb and re-radiate infrared radiation, after all. In any case, supposing the Hockey Stick data were proven wrong (and it hasn’t been–it has been repeatedly confirmed), the whole case for anthropogenic global warming wouldn’t come crumbling down. It is just a nice illustration of certain points, and some data we can try to mimic with models over a longer time period than since we have had thermometers.

            In the public world, people don’t care about arguments based on physics. They want sound bites and pretty pictures. Therefore, since the Hockey Stick makes such a striking illustration, it was easy to throw it out there and sort of seemingly imply that it proves anthropogenic global warming. The contrarians, seeing an opportunity to score some points, started incessantly nitpicking the Hockey Stick work and implying that it was fraudulent (even though other work confirmed the main points of the work).

            There you have it. If you want to learn about what any of this really means, I suggest starting with an introductory textbook on climate change to get a basic foundation, and then branching out from there. Andrew Dessler and David Archer are 1st rate scientists in the field who have written such books.

            • And in fact, contrarians who argue that the hockey stick left out the MWP (it didn’t — it didn’t find one that’s global) are inadvertantly arguing, whether they know it or not, that our future warming might be *worse* than we expect from GHGs (etc).

              Because if there was a global MWP it would mean the risk of such natural warmings is apparently *greater* than the science currently shows. So in addition to GHG warming we’d have to worry (more) about a “natural” upward fluctuation that adds to it.

              Of course that risk is always there, but a natural warming episode 1000 years ago implies the potential for a higher risk than if that global warming wasn’t there.

            • Exactly. Just another illustration of why the scientific and public debates are on different planets. The contrarians are unwittingly arguing for higher climate sensitivity!

      • Any record of the past cannot be predicting a thing, since it is entirely about the past, and, lest you missed it, the past is not in the future.

        • Gee, I guess that means that all those law enforcement people are wasting their time studying the past history of serial killers, eh? After all, what a serial killer did in the past, since it was in the past, has no bearing on what the killer might do in the future, since it’s in the future.

          • Tim, the key question is what greenhouse gases have done to the climate in the past. People can estimate that, and then use that to predict what might happen if we pump extra greenhouse gases into the atmosphere. There is no question that GHGs cause warming, and that we are putting GHGs into the atmosphere in a way that hasn’t been done before.

            • Barry, re: my post. Sure. I was responding to the point “Wow” was making regarding the irrelevancy of the past on predicting the future. *Everything* happens in the past, and so his statement that “Any record of the past cannot be predicting a thing…” is tantamount to declaring that it is impossible to predict anything. Which is patently absurd. I was using the example of law enforcement agencies (which use past records to make predictions all the time) to point out the basic problem with his statement. I probably should have used another example.

            • Hi Tim,

              Sorry, I was looking at the wrong view of the comments (from the comment approval page) and thought you were responding to another of Wow’s posts. His point is that Mann’s hockey stick is just a record of past temperatures. Can you use that record to test or calibrate climate models? Yes, and such a model could predict things. But by itself, a record of past temperature can’t predict anything. It is not a model.

            • Tim,

              Today the temperature rose by 6C over 8 hours, therefore by thursday evening, all life on the planet will be dead!

              Any record of the past (Mann’s PAST RECONSTRUCTION OF THE PAST) cannot be wrong about FUTURE TRENDS.

              Conclusions made from those can be wrong, BUT NOT THE RECONSTRUCTION if your “proof” is “it didn’t continue like that!”.

          • “I guess that means that all those law enforcement people are wasting their time studying the past history of serial killers,”

            No, the only muppet here claiming that is you, Tim.

            Mann’s paper did not predict a damn thing. Models predict. Not data.

            • Muppet? Gee, thanks. You seem like a sweet person.

              FYI: I am not skeptical about AGW. Well, I should say that I’m no more skeptical about it than I am about anything else. I am convinced that, unfortunately, AGW is real.

              I was merely trying to point out that using past data to make predictions about the future is, well, fundamental to making predictions about anything. One can form a hypothesis (that is capable of making an accurate prediction) without having to build a “model.” I was taking exception to your blanket statement. Given the proper context, that you were simply talking about Mann’s reconstruction *in particular* and not data points and predictions *in general,* I think we can chalk this up to a misunderstanding.

              Regardless, let’s not take this to the playground, ok?

            • If the cap fits, Tim (and it does), then wear it.

              Don’t like it? Don’t warrant it.

              “I was merely trying to point out that using past data to make predictions about the future is, well, fundamental to making predictions about anything”

              Problem was: you weren’t.

              You were claiming that the past data was false because future data was different.

              Mann’s work was ONLY PAST DATA.

              How many ways will it have to be said? Barry did. But that doesn’t fit your required narrative. I did. Twice. Three times including this, but, hey, you’ve now whooshed those goalposts and pretended they were here all along instead.

              MANN’S DATA IS NOT DISPROVED BY CURRENT TRENDS.

              Your failure to accept or even acknowledge this has even been said is why you are indubitably a muppet.

            • Re: “You were claiming that the past data was false because future data was different.”

              You are as wrong as a person can be.

              1) I accept Mann’s reconstructed temperatures. Until someone comes up with some new information, the hockey stick is real as far as I’m concerned.

              2) I know that Mann’s data is not disproved by current trends.

              3) I do not reject the theory of AGW, despite the relatively low surface temperatures that have been recorded recently.

              Somehow, you are going to have to reconcile those facts with your inferences.

              Now. You made the following statement: “Any record of the past cannot be predicting a thing, since it is entirely about the past, and, lest you missed it, the past is not in the future.”

              This statement is incorrect, and that’s all I was driving at.

              Your repeated insistence on resorting to name calling is offensive and childish. Get lost.

              Tim

            • Mann’s paper did not predict a damn thing. Models predict. Not data.

              I agree that Mann’s paper does not predict anything, but the result does offer some insights into the expected future, it seems to me.

              The hockey stick is not really a surprising result, since the last few centuries have seen a super-exponential increase in human population, and at least an exponential increase in CO2, CH4, N2O, etc.:

              “Evidence for super-exponentially accelerating atmospheric carbon dioxide growth,” Andreas D. Hüsler and Didier Sornette

              http://arxiv.org/abs/1101.2832

              Temperature change is proportional to the rate of forcing, which for CO2 varies like the logarithm of the atmospheric concentration, and for CH4 and N2O varies like the square root of the concentration:

              http://www.esrl.noaa.gov/gmd/aggi/aggi.html

              Given these, is the hockey stick’s exponential rise (viewed over recent centuries) in temperature really that surprising?

              And with CO2 is no longer rising super-exponentially with time, but just exponentially, and methane and nitrous oxide also now rising less than exponentially:

              http://www.esrl.noaa.gov/gmd/aggi/aggi.html

              radiative forcing is now rising linearly with time:

              http://www.esrl.noaa.gov/gmd/aggi/aggi.html

              Of course, doing the calculation is the only way to get the real funcdtion T(t). But it seems to me the sharp upward rise of the hockey stick circa 1850 is not surprising from a heuristic point of view.

            • David, that’s not what Tim is whining about here.

              Tim wants to “appear balanced” by finding “problems on both sides”. Unfortunately to do so he has to make up an alternate reality where historical reconstructions are predictions for future trends. Then make up an alternate reality so that he’s never told that’s a crock.

              Tim’s original “complaint” was from “agnostic13″ and was 100% complete fiction:

              “I was until now under the impression that the “hockey stick” graph predicted a steady rise in temperatures from certain point on.”

              Tim just ran with it as a stick to beat one side up because he’s got bugger all else to manage his goal.

            • Rubbish, Tim.

              Your “points” have NOTHING to do with your asinine insistence that “the “hockey stick” graph predicted a steady rise in temperatures from certain point on.” was in any sense accurate or real.

              Your refusal to do this is ALSO not rebutted by your “points”.

              Indeed your entire schtick has been to raise irrelevancies as if they somehow protect you.

              I couldn’t give a rats ass if you’d personally invented a sovereign specific against cancer and saved billions of lives. If you talk BS, then I’ll damn well tell you that, and no matter how many other things you’re right on, pointing them out DOES NOT MAKE YOU RIGHT WHERE YOU ARE WRONG.

            • I have never made the claim that “…the “hockey stick” graph predicted a steady rise in temperatures from certain point on.”

              Barry thought I was responding to the wrong comment, maybe you misread the comments too?

              The only point I have tried to make in this discussion (and it has gone on way too long…) is that one *can* use past data to predict the future without having to build a model. Law enforcement officials do it all the time when they profile killers, as a rather crude example. They don’t have a model, per se. They only know that there is a pattern in the historical data which allows them to make predictions about the perpetrator in a very practical way. You can also apply it to sports: in baseball, a lifetime .250 hitter is not going to suddenly hit .380 even though there is no “model” for a lifetime .250 hitter. But you can predict pretty accurately what they are going to hit in the coming (future) season on nothing more than what they have done in the past. (As a matter of fact, if a lifetime .250 hitter suddenly hits .380 for the season, one could reasonably predict that he’s juicing.)

              That’s all.

            • “I have never made the claim that “…the “hockey stick” graph predicted a steady rise in temperatures from certain point on.””

              You support someone’s claim that this is so.

              What a load of empty puffery. If you don’t believe the statement, WHY THE HELL are you defending it?

              To argue?

  4. “Oh, you can find a few things to argue that Mann made some minor mistakes that didn’t end up making much difference for his results, or made some data-handling choices that other scientists might not have, but deliberate data tampering is another matter.”

    One of the question is whether those “minor mistakes” were deliberate or not.

    One way of proving they were deliberate would be to show that Michael Mann has, in the past, made false assertions.

    Didn’t he assert that he was a Nobel Laureate?

    • Anton,

      How, exactly, would showing that Mann had ever made any false assertions “prove” that he had deliberately falsified data? It wouldn’t.

      But if you wanted circumstantial evidence that he at least sometimes knowingly makes false statements, you’ll have to do better than that. Mann was a lead author on the IPCC Report for which the IPCC shared the Nobel Peace Prize with Al Gore. The IPCC sent out to all the lead authors a copy of the Nobel diploma and a certificate recognizing their contribution to the award. Mann (and others) assumed that meant they shared in the award. Only a conspiracy-theorist wingnut could possibly see that as proof of nefarious intent.

      • I was under the impression he was calling himself (in singular terms) a Nobel laureate not a collective recipient.

        If that’s the case, would calling himself a Nobel laureate constitute as a “minor mistake” too in your book?

        Furthermore, is it not a little disconcerting that someone in such an important position as the lead author on the IPCC Report keeps making these minor mistakes, and doesn’t he therefore bring it on himself with all his “Doh! I’ve made a another minor mistake” carry on?

        • Hi Anton,

          When I saw him claiming to be a Nobel Laureate, he always mentioned that it was with the rest of the IPCC. Did he ever fail to mention that? I don’t know. However, I do know that the IPCC sending out the diploma copy and certificate was confusing for a lot of people. You can judge for yourself how serious the mistake was. But I believe that anyone who would use that to argue Mann had some kind of nefarious intent must be extremely ideologically motivated.

          As for the “minor mistakes” I know about, they are just some issues with whether he used the best possible statistical method. The fact is that scientists aren’t statisticians, so it’s a lot more common than you might think for scientists to blow their statistics, but it is EXTREMELY common for us to not use the absolute best possible stats methods. Mann’s mistakes didn’t change his results much, so that’s the kind of thing that almost every scientist has done, and much less serious than many. To me (a working scientist who teaches a geoscience data analysis class), it is astonishing that anyone would use something like this to argue that he must have been committing some sort of crime.

          So let’s get back to the topic of the post, Anton. Supposing that what I’ve been telling you is true (and I don’t expect you to just believe me… just suppose for the moment…) wouldn’t you say that the defendants in the case probably should have just modified their language a bit, rather than digging in and insisting on their right to falsely accuse people of criminal acts? Let’s face it, there’s no way they can prove they had anything that ever could have looked like smoking-gun evidence of foul play. They’re just grandstanding, rather than acting like adults.

          • I’m not sure what you mean by modifying the words. The words molested and tortured could have been modified to the word manipulated which would subjectively appear less harsh but would still mean the same, and as such Mann could still do what he’s doing now. You’d also be left with a less eye-catching and topical article.

            It’s a matter of opinion, until proven otherwise, whether the mistakes you allude to are minor or more major, and it’s also a matter of opinion, until proven otherwise, whether those mistakes were accidental or deliberate. The default position with any mistake is that it’s accidental. However, if the scientist in question had in the past behaved in a suspicions way (by declining requests for data) and had asserted something about himself that was not true (Nobel laureate) It would be fair for a journalist to reach the conclusion that the scientist in question manipulates information/data, and then apply that conclusion to the scientists work (scientists collect data and reach conclusions based on that data, as do journalists, the difference comes when they report their conclusions. Journalists report it in an eye-catching and readable way)

            I also don’t think it’s plausible (if this were to become an issue for him) for Mann to argue that he became confused by the IPCC certificate and the Nobel peace prize itself (in effect, he would be arguing that he’s dimwit).

            • Even if they just removed the part about manipulating the data ***to serve particular political ends***, it would be much easier for them to argue that they were using the word “fraud” in a sense that doesn’t imply criminal conduct. (That’s what Rich Lowry claimed.) But an even easier out would have been to modify the wording with one or two notifications that this is just an opinion, not an assertion of fact. All of that, as I understand it, would be protected speech.

              In any case, no matter how “suspicious” you are… and for heaven’s sake Steyn has no basis to be “suspicious” when he doesn’t even know what the Hockey Stick is… the particular allegations had already been investigated by scientific bodies, and Mann was exonerated. So now the burden is on the journalists to document that there was criminal intent, if they want to just come out and accuse Mann. They can still say they are suspicious, and they can slather on the innuendo as thick as they want. They just can’t make direct accusations of criminal behavior without evidence.

              As for the Nobel stuff. If Mike Mann were the only lead author who thought he shared in the prize because of the copy of the Nobel diploma and certificate the IPCC sent, maybe you would have a point. But he wasn’t. There were others. So whatever you think about how stupid it was, I think anyone who uses this as evidence of intentional fraud, or anything of the like, is a slobbering loon. Seriously.

              If you want to see another example of an IPCC author who thought he had shared in the prize, see this:

              http://nofrakkingconsensus.com/2011/01/20/ipcc-nobel-laureates-lack-scientific-credibility/

            • A few problems with your argumentation are that Mann did not decline requests for data and that Mann did not use his own data, but data obtained by others. In other words, even if Mann had declined to share data, the data would be available from other sources.

      • Heck, even if Mann HAD faked the entire thing, if Steyn DID NOT KNOW THIS and ALL evidence they have pointed to it not being faked, HE STILL COMMITTED LIBEL.

        Therefore Mann doesn’t have to offer evidence of his data being correct, Steyn et al have to offer their evidence that made them believe their claims.

  5. Barry: The point that you and other AGW proponents don’t get is that “the science is not settled”. From what I can tell, the first thermometer wasn’t invented until the 1600’s. Accurate weather satellite mapping wasn’t available until what, the 70’s. Yet, MM comes up with this hockey stick graph based on what? Tree rings? So, unless “you people” can provide satellite temperature mapping from 10000 BC until 1970, how can you claim the science is settled?

    I find it amusing how MM and his band of merry followers are running around acting like the Catholic Church back in the day when Copernicus and Galileo were around. Wasn’t science of that day “settled” that the sun revolved around the earth?

    Just like the Medieval Catholic Church had an agenda to support and protect, the same with MM and other AGW disiciples in the present age. The only thing missing from the AGW agenda today is a stake and wood to burn…

    Correct me if I am wrong, but doesn’t the scientific method include sharing methods and data with others so that they can independently verify the results? AGW theory is no different from cold fusion if MM insists on a coverup. So why is MM so skittish?

    Now, if you don’t do it, a fellow poster will simply say that I am wrong, or uneducated and attack me without offering any shred of evidence to support their star-struck AGW position except to say the science is “settled” and that I am fool for not knowing it.

    Sad to say, that is all MM and his AGW bunch have…attacks and denials.

    • Pertti,

      I would never say that “the science is settled,” and… brace yourself… neither would Mike Mann. See this post:

      http://bbickmore.wordpress.com/2013/08/02/heartland-knows-squat-about-science/

      And Mike has shared his data and methods with others. If you really want to know about how paleoclimate proxies (like tree-ring density) work, you might look at this:

      http://en.wikipedia.org/wiki/Paleoclimatology

      So you really, truly, honestly, do not know what you are talking about. Your sources of information (Mark Steyn?) have misled you–not just about what is “true” about the science, but about what others say about it–and I invite you to do a little more reading to educate yourself. I would be happy to help.

    • The only AGW proponents are the denial industry, who wish to continue AGW because do do otherwise would cost them something.

      Something you deniers do not cop a plea to.

      “I find it amusing how MM and his band of merry followers are running around acting like the Catholic Church back in the day”

      Ah, so when you whine about being called deniers, that’s wrong because you and your band of merry followers are running around acting like the Catholic Church back in the day.

      Ha! Who needs evidence when all you have to do is point and say “WITCH!”?!?!

  6. You and Steyn are arguing different topics. Steyn is arguing for the right of one to freely express his opinion. You are arguing the legitimacy of the science. Because you are caught up in that, I think you are missing the bigger picture. Is Steyn right or wrong? It’s immaterial. In an opinion piece he should be allowed to express his opinion. If he thinks the science is fraudulent, nothing should prevent him from saying it. You think he’s a fool. Say that. A public figure engaging in a public debate, and Mann is that by his position and his insistence, should never seek to shut down that debate because he feels insulted.

    • Tito,

      I have no idea what you are talking about. This post is about whether Steyn and co. defamed Michael Mann in a manner that is legally actionable. Whether Steyn thinks “science is fraudulent” or not, he still can’t go about falsely accusing people of crimes. You apparently think it’s ok to do things like that, but fortunately, our legal system was designed by smarter people than you.

      • That comes across as a deceptive quote, Barry. I doubt that Tito meant that Steyn thinks science is fraudulent.

        • I meant “the science”.

        • Remind me never to make a simple typo in a post that might be read by conspiracy theorists. “Deceptive quote.” Please.

          • Typos happen; some are obviously typos, some can be deceptive, intentionally or not. I think your first reaction was best, just acknowledge it and say what you meant. I don’t think it adds anything to speculate about the person pointing out your mistake.

            Tito’s point is simple, and essential for a free society: if Mark Steyn thinks the hockey stick graph is fraudulent, he should be allowed to say so.

            Barry, you’ve written four long posts and numerous comments, but with all due respect, none of the arguments contrary to that make sense. You acknowledge that calling something “fraudulent” doesn’t necessarily imply criminality, you don’t cite any implication of intent to commit a crime, and the lack of value of the investigations was the main point of his post–if Sandusky was exonerated, an exoneration meant nothing–so citing them seems irrelevant. Am I missing something?

            • David Hees: If I think you’re a pedophile, should I be allowed to say you are on a widely read Web site?

            • Yes, you are missing something. Read the posts again.

            • David Appell, are you looking for your own lawsuit?

            • And here’s one reason why Tito’s point (and yours) is absurd. That is, nobody is disputing Steyn’s right to say “he thinks” Mann’s hockey stick work is fraudulent. He can say “he thinks” just about anything he wants. He just can’t directly accuse someone of a crime they clearly didn’t commit. As I indicated, you can read the posts again to see why I believe Steyn and company are on the hook for that, and can’t really claim they were using some other definition of “fraudulent”.

            • Also, if you don’t want to be labeled a “conspiracy theorist,” don’t go around insinuating that I intentionally left out a “the” from my quotation of a post that anyone can look at right above my reply.

            • David G Hees, are you saying that Steyn et al are wrong and that libellous content should not be posted and accepted as “Free Speech”?

            • “David Appell, are you looking for your own lawsuit?”

              David Hees,

              How could a hypothetical question possibly be the basis for a lawsuit? Isn’t it interesting that you seem to want to defend Steyn’s right to make direct false accusations of criminal behavior, but the moment someone asks a hypothetical question about the possibility of making a direct accusation about… well, not even necessarily criminal behavior on your part, just deviant sexual tendencies… you start throwing out veiled threats of a lawsuit?

          • Remember, Barry, when there’s no clear evidence, there are two methods left:

            1) Make it up
            2) Admit error

            #2 is unpossible for the libertarian or fundamentally religious.

    • Tito, Steyn is NOT arguing for his right to express opinion, he’s arguing for the right to make claims of crimes committed by someone whose science he doesn’t like.

  7. Steyn is a wretched creature, isn’t he.

  8. “ultra-right-wingers who JUST KNOW, based on a single, innocuous phrase taken out of context from a stolen e-mail”

    hyperbole alert
    mann/mcintyre episode shows it’s much more that that.

    • No, it doesn’t. Can you find anyplace where McIntyre accused Mann of doing anything wrong with nefarious intent?

      • I can provide a place where McIntyre explicitely states the opposite regarding MBH98 and 99. I won’t do it, because the fun is in seeing pseudoskeptics like bv to ignore the facts and move the goalposts. There is a LOT of goalpost moving going on on these threads (see as prime example Leonard Weinstein’s posts on an earlier thread).

  9. As a paleogeneticist who uses climate models (without having any interest in advocating one over the other), I know all of the skeletons in their closets. So Barry, let me weigh in with some facts:
    (a) Mann made some very bad mistakes in his statistical analysis of his proxies in the original “hockey stick” paper. As subsequent papers from Mann himself and his conceptual allies show, the Medieval warm period is largely back; reconstructions by more objective analysts have it back entirely. And as a worldwide phenomenon, as recent ice cores from South America suggest. Even the US National Academies report that exonerated Michael of wrong-doing did not endorse his climate reconstruction more than for the past 400 years, deliberately leaving out his conclusions about the Medieval Warm Period. Further, the Roman and Minoan warm periods never went away. They appear too to be as warm and warmer than today. And, of course, the Pliocene was warmer still, and the Eocene dramatically warmer (Antarctica had deciduous forests).
    (b) Thus, the overwhelming consensus of science concludes that the current warming, in both its magnitude and rate, is no different from the natural warming and cooling since the last Ice Age. Of course, in comparison with temperature variation throughout the Pleistocene, the temperature over the past 1000 years has been remarkably stable.
    (c) Whether or not Mann committed fraud is still open. What is clear from the East Anglia emails is that some in the community openly admit that they used “tricks” to hide the fact that their proxies for temperature, used to “get rid of” the Medieval Warm period, failed to account for temperatures for the last half century (“hide the decline”). What is relevant to public policy is that no evidence at all exists from the paleoclimate record to support the view that the temperature rise from ~1750 to present is human-caused or, indeed, anything other than the natural fluctuations that we have seen for the last 5000 years.
    (d) This notwithstanding, it is conceivable that human release of CO2 might overwhelm the natural forces that determine climate change. What is clear is that models that predicted this have failed. These models, in 2000, made predictions about future temperatures, including temperatures today. Those predictions have proven wrong. Therefore, the models must be wrong. Some negative feedback that we do not understand must be preventing CO2 rise (which is continuing) to prevent continued temperature rise. And yet these are the very same models that are being used to guide public policy.
    (e) It is very easy to possible negative feedbacks. Thus, the models never proposed that CO2 drives climate change. Rather, CO2 is proposed to be the initial driver, with water vapor (a much, much better greenhouse gas) modeled to “carry” the warming. However, higher water vapor is expected to generate low clouds, which are cooling. Cloud formation is notoriously difficult to model. However, an increase in clouds by just a few percent will counteract and CO2-caused warming. And this is just one of many possible negative feedbacks that are not captured by the models (that drive public policy) that can explain why we are not having the runaway climate temperature increase that was predicted by those models.
    Will human created CO2 have other negative impacts? Maybe ocean acidification. CO2 has been higher in the historical past, and the corals did not dissolve.
    Is global warming bad for civilization? Well, as the current winter shows, given where and how we have chosen to invest our capital stock, cooling is far more disruptive than warming. And on the 10,000 year time scale, the only serious climate threat is from another ice age (remembering, Long Island is a glacial morraine; the next ice age will, if it is like the last, take out Chicago and Boston, entirely, not just the low-lying areas).
    Did Mann “torture data” (the allegedly libelous comment)? Who knows? This will come out in trial. But remember. In American libel law, as Mann is the plaintiff, Mann must prove that he did NOT torture data. And if Mann is judged to be a public figure, not only must he prove the negative; he must also prove that Steyn acted in malice (that is, with knowledge that Mann did not).

    • Fred,

      Some of what you say is true, but other parts are not. You seem to be mixing in legitimate, published research with some amateurish nonsense, and with some other legitimate research that nevertheless is only regional in scope. In addition, you don’t seem to understand what the problem is supposed to be. We actually have a decent amount of information about both the climate and major known climate drivers in the past, so it’s not some giant mystery what was driving climate changes in the past. GHGs are one of the main drivers. So it doesn’t cut it to just say climate has changed a lot in the past, and drop your “Occam’s razor” logic (in your other comment). At the present time, volcanic emissions are up a little, solar insolation is down, and we’ve been stuck in La Niña dominant ENSO mode since the 1998 super El Niño… and yet, global temperature is still rising, just not as fast as it was. All of nature is conspiring against us, my friend, and the GHG emissions are still winning. So far, the climate hasn’t changed so fast that ecosystems and so on can’t handle it. That’s great. But we pretty well know what the main driver is, for the present, and roughly the magnitude of GHG pulses in the past. (Look up the Paleocene-Eocene thermal maximum.) So we at least have a rough idea of what to expect if we just keep ramping up the emissions for one or two hundred more years, and looking at what has happened during past (relatively) rapid climate changes in terms of mass extinctions and the like, we’re asking for it.

      As you say, the exact magnitude of the cloud feedback, but the best work on that (using satellite data) indicates that 1) it probably isn’t that big, and 2) it’s likely slightly positive, on average.

      In any case, back to the topic of the post. Mann doesn’t need to prove the charge is false in absolute terms. He just has to do it well enough for a courtroom. And both judges already indicated that all those scientific inquiries that had already taken place were probably good enough for that.

    • I entirely and 100% reject your claim of being a paleoclimatologist as being anything even remotely close to factually true.

      QUOTE> (a) Mann made some very bad mistakes in his statistical analysis of his proxies in the original “hockey stick” paper.

      Nope. Several subsequent studies using different methods, including one re-creation of the MBH results with the statistical analysis that was claimed to be better PRODUCED THE SAME RESULT of a hockey stick, with statistically insignificant differences.

      QUOTE> (b) Thus, the overwhelming consensus of science concludes…

      No such thing as you claim. But your point A (the prerequisite clause informed by the “Thus”) COULD NOT conclude anything like you claim: the results would be orthogonal.

      QUOTE > (c) Whether or not Mann committed fraud is still open.

      Only to conspiracy theorists who claim that each of 9 inquiries into that claim have been “Got at”. Excluding the later researches done independently that found the same result.

      QUOTE > (d) … What is clear is that models that predicted this have failed.

      Nope, they’ve done damn well. Hansen’s 1988 paper would have been SPOT ON if it had produced a conclusion that climate sensitivity were 3.2C per doubling CO2e rather than 3.4C per doubling.

      QUOTE> (e) It is very easy to possible negative feedbacks.

      Indeed it is. Showing that they produce less than 3C per doubling CO2 is very difficult, whilst being impossible to produce less than 2C per doubling, unless the earth somehow “knows how hot it should be”.

      • Wow, he said he is a paleogeneticist, I believe.

        • OK.

          That’s still 99%+ false as someone as incompetent to judge the science as he’s displayed would not be able to get past any genuine test of ability.

          Unless it’s one of those fake doctorates that some religious funded education centers give out to give their YEC “scientists” paper-authority. In which case, they have the paper, but don’t have the expertise.

      • It’s hard to figure out who “Wow” is talking to. Who above claimed to be a paleoclimatologist?

        Other than that, what a load of BS. Empirically derived climate sensitivity estimates are likewise BS since they assume simplistic correlations between T and CO2 + insolation, etc. The most important component is albedo, which is tantamount to ice cover. Ice comes and goes according to insolation, i.e., Milankovitch cycles, best presented as June insolation at temperate latitudes (usually 65N).

        With enough sunshine, the southern edge of the northern ice sheet melts faster than it snows. As ice are decreases it warms. That’s why T and CO2 lag M cycles by thousands of years. CO2 has no discernible influence on T in the ice cores. –AGF

        • AG,

          The climate sensitivity estimates from glacial/interglacial cycles do take into account changes in albedo due to ice cover. And even taking this into account, the changes in temperature can’t be modeled adequately without taking into account GHG changes.

          • I challenge you to find a core which shows any short term correlation between CO2 and T, i.e., on a centennial scale. –AGF

            • I challenge you to explain why a single core, which is inherently a record of local conditions, should show “any short term correlation between CO2 and T, i.e., on a centennial scale.” If you mean that they should generally go in the same direction over 100 years, then that’s easy. If you mean that they should show year-to-year correlation over 100 years, then that’s ridiculous.

            • You’re asking for an elephant that will fit in a normal sized human sock.

              Because you know it won’t be available.

              Look at the evidence, dear.

        • Yes it was a load of BS I was responding to. Your eyesight seems to be miscalibrated.

          QUOTE > Empirically derived climate sensitivity estimates are likewise BS

          So sensitivity as measured is BS because you claim it to be and if you modeled or worked it out mathematically, then it’s BS because, um, you claim it to be.

          If you have a better answer, write it up and lets see if it’s BS.

    • Fred Douglass, could you please provide any evidence that paleoclimatologists chose proxies to “get rid of” the MWP?

      One slight warning: making this claim requires you to unconditionally believe in the claim of one scientist (Deming), who supposedly remembers what was written in an e-mail to him by someone he had never met before, and declines to say who it was. It also requires you to believe that several independent scientists then took that task of “getting rid of the MWP” (e.g. Briffa vs Mann/Bradley/Hughes). Finally, it requires you to believe that Mann had decided to then contradict himself already in 2003, before any criticisms of his 98/99 paper were published.

      Also, did you ever look at the PAGES 2K reconstruction? It’s here:

      http://www.nature.com/ngeo/journal/v6/n5/abs/ngeo1797.html

      There are many, many different groups involved in that paper, and the conclusion is the same as in MBH99: it’s never been as warm in at least 1400 years, and there’s no evidence of a globally synchronous MWP.
      Perhaps you are being confused by all those papers that claim a MWP, just because they see a warm period somewhere between 800 and 1300 CE. That one has the warm part in 800-1000 and the other at 1100-1300 means they both claim a MWP, but that it is not synchronous.

      I think also that Mann has already all the proof he needs to show he did not torture the data (as in “fraudulent” manipulation of the data):
      Wahl & Ammann, McIntyre’s statements on this, and the NSF OIG’s investigation.

  10. Well, I have to finish a manuscript tonight; the curse of the internet is that one can always find on it something more interesting than what one is supposed to be doing. But you seem to be an interesting chap, so a few more words might be useful.

    The models upon which public policy is being based have failed to make accurate predictions for 20 years. Most of them attempted to include aerosols, volcanoes, solar activity … Indeed, Doug Archer (UC) claims that their PC analysis captured all of those factors that you mention, and more.

    So you cannot invoke these factors to explain the models’ failures, when the models claim to incorporate them. Pierrehumbert also, come to think of it. Of course, we can always re-parameterize the models based on the latest data, and assert that thoogh we have failed in the past, THIS model will finally work. But climate models are already falling into the over-parameterization trap. The more parameterization is done, the better the model reproduces the past (including past noise), and the worse it becomes at prediction.

    And contrary to your statement, we do NOT know what the drivers are. We really do not know what caused the Paleocene-Eocene maximum. Or the Oligocene cooling (the Drake Passage opening? You tell me.). Or the climate catastrophe by the Pleistocene that brings ice to sea level for the first time in 600 million years. Panama? Or the Minoan/Roman/Medieval/Little Ice age, or the current climate change.

    As for cloud cover, I do not know where you get your information. High clouds are generally warming; low clouds generally cooling. The numbers we use say that 2% low cloud cover increase is sufficient to balance the primary CO2 effect (recognizing that given a few dozen more ppm and the CO2 effect is saturated in any case).

    As for what Mann needs to prove, I am no lawyer. I did consult for a case a while back. If I were an expert witness, I would probably testify that yes, to say that a fellow scientist “tortured data” could be libelous. Further, I would probably testify that Mann is a public figure. So, as I understand it, since Mann is the plaintiff, he has the burden of proof to show first that he did not torture data and second that Steyn knew this, or should have known it (“malice”).

    But from my experience with attorneys, there is no question that they would consider it malpractice NOT to try to get the case dismissed, no matter what their clients wanted. Further, if they did not try, they would waive a raft of arguments.

    So I think that your interpretation that they are “running scared” because they filed an anti-SLAPP motion is very naive. They filed the motion to dismiss because they MUST file the motion, no matter how strong/weak they perceive their case to be, to avoid waiving arguments and being accused of malpractice.

    • Hi Fred,

      I get the impression that you are not a modeler. (I doubt many paleogenetecists are, so I don’t mean that as a dig, just an observation.) Why? Because you keep dropping comments about how the models have failed at this and that, but you make it clear that you don’t really have a clue what the models can reasonably be expected to be good at. Climate models take the forcing as input, so if some aspects of the forcing aren’t very predictable, of course projections would be off some, even if the models were otherwise perfect (and they never are). You say that most of the climate models “attempted to include aerosols, volcanoes, solar activity”, but how on Earth is a climate model supposed to predict how much low-level volcanic activity there will be in the future? Or the degree to which China will put scrubbers on their smoke stacks? The 11-year solar cycle is at least cyclic, but we’re not very good at predicting how big the maxima and minima are going to be. It’s clear that the slowdown in the temperature rise over the last 15 years has been mostly due to ENSO–a massive super El Niño at the beginning, followed by mostly La Niña conditions. However, while some (not all) of the AOGCMs are pretty good at mimicking the general features of ENSO, they aren’t good at predicting exactly when there’s going to be an event. And they can’t possibly be, given the coarse grid resolution of the models and the nonlinear nature of the system. On the other hand, if you force a climate model with real weather data, it does produce the present slowdown. As a modeler myself, I look at the model projections (especially the spatial patterns, not just the global average temperatures) and think they are doing a pretty decent job, given their inherent limitations. Decent enough that they shouldn’t just be dismissed out of hand.

      With respect to the P-E thermal max, you’re right that we don’t know what, exactly, caused it, but the isotope data says there was a huge pulse of isotopically different carbon into the atmosphere at the time (just like we’re doing now, but on purpose). We know enough to make informed people cautious.

      My info about cloud feedbacks comes from Andy Dessler’s last paper on the subject. Like I said, it’s quite complicated, but given the satellite data we have so far, odds are it’s a slightly positive feedback, on average.

      As for the lawsuit, are you really saying that the lawyers MADE the defendants plead anti-SLAPP? Please…. Anyway, you are free to disagree with my interpretation, but it should at least be clear that the defendants aren’t as hot to get to discovery as they said they were. As I said about the “malice” issue, the judges seem to think that the defendants pushing for inquiries, getting them, and those inquiries finding no evidence of foul play, is enough proof for a courtroom. We’re not talking about an absolute proof standard, here.

      • Well, I am a lawyer and I can tell you that the defendants’ lawyers can’t MAKE them file a motion to dismiss. The lawyers can advise and can spell out any problems that not filing might create, but the decision is ultimately up to the client. If the client decides they want to go against the lawyers’ advice, the lawyers make sure they have a CYA letter, acknowledged by the clients, so they cannot be accused of malpractice later. If the defendants here really wanted to go to discovery and trial, they wouldn’t have gone through all of the maneuvering and delays that they did. It wouldn’t surprise me if part of the strategy was to try to cause Mann to run out of money.

        • This is why his lawyers left.

          He’s a toxic client.

      • See Spencer: “95% of Climate Models Agree: The Observations Must be Wrong”

        http://www.drroyspencer.com/2014/02/95-of-climate-models-agree-the-observations-must-be-wrong/

        –AGF

        • See my page on Roy Spencer. He is not a modeler, either.

        • Think Christy and Spencer will be submitting this “finding” to peer review?

          No, I don’t either. Blogging is so much easier.

    • This claim makes redundant ANY stature to believe your claims of writing a paper:

      “The models upon which public policy is being based have failed to make accurate predictions for 20 years.”

      For a start, climate is 30 years, so 20 isn’t sufficient.
      Secondly, over the last 20 years, you get ~0.13C mean difference per decade, entirely within the model predictions.
      Thirdly, they may a hell of a lot more prediction than merely the temperature trend, each of which have proven either accurate or, where inaccurate, to have been FAR TOO BLASE about the problem and have UNDERESTIMATED the change.

      When a model that says you should do X because Y happens is wrong because WORSE THAN Y is happening, you cannot use this to claim that you do not do X.

      No matter how much you click your ruby slippers together and wish.

  11. By writing that “dull, uncooperative 21st-century reality has failed to live up” to the hockey stick, Steyn also shows he doesn’t understand that the hockey stick doesn’t extend past 1980, or why.

  12. BB (219PM): “I challenge you to explain why a single core, which is inherently a record of local conditions, should show “any short term correlation between CO2 and T, i.e., on a centennial scale.” If you mean that they should generally go in the same direction over 100 years, then that’s easy. If you mean that they should show year-to-year correlation over 100 years, then that’s ridiculous.”

    Honest, rational dialogue never comes easy when a believer is involved. 18O as a T proxy is both global and local: global as far as evaporation is concerned, and local with regard to precipitation. Regardless, global T trends are the average of local trends, and on average, as global T goes up or down so does local T. Kindergarten class over.

    Grade school: late 20th century warming is postulated to be caused by an increase in CO2. This postulate is based on the averaging of thousands of local stations, and assumes an annual or decadal correlation between T and CO2. (Now with the pause, make that a centennial correlation.)

    JHS: Ice cores typically allow decadal resolution. Allowance is made for delayed CO2 capture, with a period depending mainly on rates of snow accumulation, thus increasing with higher younger ice.

    HS: Millennial T/CO2 correlation is not directly causal; both respond in tandem to albedo/ice sheet extension which lags insolation cycles. Accordingly long term correlation tells us nothing about CO2 forcing.

    Now if CO2 does force T, as is claimed for the 1970-2000 period, such correlation should be evident in the majority of ice cores. That, is on decadal to centennial frequencies. It is not. If you think it is, show an example. If you think it is not, explain why it is not. –AGF

    • Not, because manmade climate change is fundamentally different from natural climate change in that independent actors (humans) are rapidly pumping greenhouse gases into the atmosphere INDEPENDENT OF ANY TEMPERATURE INCREASE OR DECREASE.

      CO2 is a greenhouse gas, whether it gets into the atmosphere via natural processes or human ones.

      • Is that tautological definition or is it supposed to have some logical meaning? –AGF

        • David means that CO2 has certain radiative properties that don’t depend on whether humans released a particular molecule into the air. Physics. It’s the law.

        • CO2 when released naturally causes warming.

          When humans release CO2, what tells the CO2 not to cause warming?

    • AG,

      Apparently, all you need to know you didn’t learn in kindergarten, because your argument assumes that changes in the heat content of the Earth don’t involve changes in heat circulation patterns. That’s what it would take to have short-term strict correlation between CO2 concentrations changes and local temperatures. But we already know it’s false.

      • The question naturally arises, at what frequency is there correlation between CO2 and T? None? Do you believe in GHG Global Warming or don’t you? –AGF

        • Look, AG. CO2 is a “globally well-mixed gas”, whereas local weather swings are much more linked to changes in oceanic and atmospheric circulation, which are chaotic. Only someone who is completely oblivious about the climate system would throw out a challenge as idiotic as yours. Period.

          • Bickmore, you’re getting more ridiculous by the minute. You seem to be arguing that ice cores have no value. Here you are, a college professor, who doesn’t know the first thing about climatology, who never read the CRU emails, which were probably leaked by an insider who was fed up with all the chicanery, in order to clue in all the clueless fools who were eating up the nonsensical propaganda that they were perennially dishing out, and you’re trying to convince people that the GW lying machine never lies. You are a waste of your salary. Worse than a waste–you are a useful idiot of the propaganda machine.

            I hold you before the BYU faculty, alumni, religious sponsors and all, as a typical gullible, inept, incompetent dupe, devoid of intellectual honesty, nearly on a par with Steve Jones, who has no business at a teaching university. Lucky for you you’re surrounded by people who don’t know any more than you do, which of course doesn’t just apply to BYU. –AGF

            • I “seem to be arguing that ice cores have no value,” only because you aren’t really listening to what I’m saying. They are valuable for looking at local conditions. They are valuable for adding local data to regional and global aggregations. But they are NOT valuable, on their own, for pinning down global heat flows. Personally, I don’t think that’s so hard to understand… which is why I’m not really concerned about what you think of my intellectual capacity.

            • Cores have no value on working out what’s happening now because we’re changing the CO2 levels NOW, not 100 years ago.

        • QUOTE > at what frequency is there correlation between CO2 and T?

          They correlate with an R2 value over 0.92. That’s STRONG correlation.

          • That’s at multimillennial frequency, where we no CO2 is not the driver. The correlation is even better without the 800 year CO2 lag. The decadal/centennial correlation is near zero. –AGF

            • Considering the whole heat circulation problem, and how the ocean turnover rate is about 800 years, a lag like that might still be reasonable. But you’re behind the times, AG. When we mostly just had Antarctic ice cores to go by, it looked like there was a lag. But when you look at sediment cores worldwide, it appears there is no lag on a global scale. Rather, circulation patterns appear to have changed, so that Antarctica lagged behind the rest of the world. That circulation keeps getting you.

            • We do not know that CO2 is not the driver.

              Those who can actually think know that CO2 is the driver.

              If you think that CO2 ALWAYS lags the temperature change, where is the 3C over 100 years temperature change around 1200AD?

        • CO2 and temperature are extraordinarily well-correlated. I have an old post on the recent record at http://moregrumbinescience.blogspot.com/2009/03/does-co2-correlate-with-temperature.html and over glacial cycles (800,000 years worth) at http://moregrumbinescience.blogspot.com/2010/01/co2-and-temperature-for-800000-years.html

          I’m going to be updating the ‘recent’ period in a new post soon.

          I’m astonished at how high the correlation is between CO2 and temperature for the past 50-60 years (82% of the variance between 1959-2007, the limits of the data sources for my 2009 blog post). I never see correlations this high (r > 0.9) for geophysical data I work with.

    • QUOTE > such correlation should be evident in the majority of ice cores.

      Why? The daily temperature isn’t evident in the tree ring data. Because the minimum resolution is one year.

      Do you think that a days’ snowfall remains precisely where it is and is always thick enough to restrict the constrained atmosphere to within that single days’ layer?

      • Why do complete idiots insist on exposing their complete idiocy? As far as I can tell, you arguing that ice cores have no value. The highest frequency I have referred to is decadal, and you bring up daily? Pathetic. –AGF

        • Wow is arguing that the ice cores have no value… FOR… what? If you can answer that question, you will achieve enlightenment.

          • OK, maybe Wow does belong here. BB is pathetic too. Daily resolution…jeez. –AGF

            • Please say your daily resolution is to go away.

            • Arrogant and repulsive moron.

  13. Re: BB @ 1022: The lag I’m talking about is between insolation and ice sheet extension, not T/CO2. You introduced the T/CO2 lag. The Milankovitch cycle/temperature lag is on the order of 5ky, and I mention it in passing to recognize the fact that CO2 is controlled indirectly by M cycles, directly by albedo. Likewise T. That is, Gore’s infantile CO2/T correlation was known to be nonsense long before any T/CO2 lag was claimed. This is why Wow’s R2=.92 is utterly irrelevant, but not many climate scientists understand that. This is why I ask for evidence of higher frequency correlation, of which there is none in spite of decadal resolution in the cores. The fact remains there is no paleo evidence for CO2 driving T. I asked you for an example of decadal-centennial correlation and all I get is BS. You don’t have the background to understand the simplest questions or their relevance. –AGF

    • I’m not understanding you, I think. You mentioned an 800 year lag, which is about what the lag between temperature and CO2 was for the Antarctic ice cores, so I assumed you were talking about that. Now you say you weren’t talking about that lag, you were talking about a 5000 year lag between insolation and ice response. Ok, I still don’t know what the 800 years was about. And now you say your whole point was that CO2 was controlled directly by albedo. So what? Why else would CO2 automagically rise and fall in the atmosphere when humans aren’t around to burn hundreds of millions of years worth of fossil fuels in a few hundred years and there wasn’t any cyclic change in volcanic activity? Does anyone, anywhere claim that CO2 was a forcing in the glacial/interglacials, or do they claim it was a feedback due to changes in insolation and ice-albedo feedback? You keep mumbling some gibberish about Al Gore. Do you ever actually read what the scientists who work on that sort of thing say?

  14. Well right you are. I did mention the 800 year lag–my apologies. Furthermore I was wrong about that lag making a difference in R2=.92. It doesn’t. But the lag remains irrelevant as far as millennial CO2/T correlation is concerned. The fact remains–and you seem to agree–that CO2 is governed by albedo. Thus you are probably agreed that since T is also governed by albedo, the CO2/T correlation implies no mutual causation: R2=.92 is irrelevant. So you will agree that Al Gore’s claim in “An Inconvenient Truth,” where he implies that long term CO2/T correlation means obvious causality–and for which he shared a Nobel Prize with the IPCC–you will agree that his claim was false. That’s progress. But the question arises, who were his scientific advisers?

    Be that as it may, my challenge remains. Do you believe in Anthropogenic Global Warming? If so, how has it manifested itself? How can it manifest itself except by CO2/T correlation at some frequency? And if CO2 does force T why should not such an effect be apparent in cores of ice, sediment, or whatever, on frequencies that matter, that is, on decadal to centennial frequencies?

    Don’t you think this question deserves an answer or explanation consisting of something more than obfuscation? As CO2 fluctuated in the past, so did T, presumably. But is there any evidence for this? Is there any reason the correlation should be valid without having left a trace?

    I pause for reply. –AGF

    • You are looking for linearity where there is none.

      T, CO2 and albedo a are all a function of one another. (There are more variables, too.) Solving the climate equation f(T,CO2,a,…)=0 for T is difficult — it’s what climate models attempt to do — but determining functions like DT/DCO2 is not as difficult (D=partial derivative).

      • “You are looking for linearity where there is none.”

        If one were to make such a claim for the present situation, I wonder what you would say. So, explain why that should be the case in a core and not in the modern T record. –AGF

        • For cores I would say the same thing — you are looking for linearity where there is none.

          But now is very different, because a significant portion of atmospheric CO2 doesn’t depend on T, albedo, or anything else — it depends only on how fast humans can transfer carbon from the ground to the atmosphere.

          • “For cores I would say the same thing —”

            I thought you were talking about cores the first time.

            “But now is very different…”

            I can’t make much sense out of that. Albedo doesn’t change much on a decadal scale, not compared to ice age variability on a millennial scale. Some things are different–contrails are new, coal soot is new. But cause and effect, CO2 forcing T, doesn’t change. If it didn’t happen in the past it probably isn’t happening now. –AGF

            • It has happened in the past, such as the PETM. Nothing in climate science really makes sense unless you include CO2’s radiative effect, regardless of where it came from.

            • “But cause and effect, CO2 forcing T, doesn’t change. If it didn’t happen in the past it probably isn’t happening now.”

              Pleistocene scenario: Insolation increases cause glaciers to recede, changing the albedo. The initial warming creates conditions conducive to more CO2 release into the atmosphere (there are several ways this could happen), and even more warming occurs. When insolation starts going down, the process reverses. In other words, CO2 is operating as a feedback in the system.

              Present scenario: Whatever else nature is doing, humans pump more CO2 into the atmosphere, and so things warm up. Because it’s a greenhouse gas, and that’s what they do.

              Here’s why your “challenges” here have been absurd. A “forcing” comes from outside the system (i.e., from space, or dug up from the ground). A feedback operates only within the system. So if, at one point in time, there wasn’t some big outside source of CO2 coming into the system, any effect it has on the temperature would have to be as a feedback. But if people are burning coal and such, there is an outside source, so it can act as a forcing.

              You seem to be insisting that there is no such thing as a feedback, which is crackpot nonsense. Even if you are only insisting that CO2 acted as a feedback in the past, and so it can’t possibly be acting as a forcing now, that’s still crackpot nonsense.

              Now here’s my ultimatum. I tolerate your insults and nonsense because, well, crackpots should have their say, too. But this is my blog, and I only have so much tolerance for crackpots who insist on inundating it with inane comments, when it’s clear they have spent zero effort trying to educate themselves on the subject of the blog. Go read a textbook on climate change, or even some decent websites, if you want to keep posting here. Otherwise, your comments are going to get spammed.

            • OK if “now is very different” is wrong, please tell us where the heavy industrial use of coal and oil 800+ years in the past is, you pissant.

  15. Re. David Appell on January 31, 2014 at 3:55 pm:
    ============================================
    At least one study claims CO2 lagged T by 3ky at the PETM:

    http://www.ncbi.nlm.nih.gov/pubmed/18097406

    What we’re looking for is decadal-centennial Pleistocene T/CO2 correlation, to provide evidence for the possibility of CO2 forcing T, short term. Of course we could argue that T forces CO2, but at least current GHG theory would have the benefit of possible Pleistocene precedent. –AGF

    • AG, you still seem to not understand the concept of “feedbacks”. One of the main hypotheses about the PETM is that the temperature rose enough to release a bunch of methane clathrates into the air, causing rapid even more rapid warming. The carbon injection didn’t start the ball rolling, but it pushed it further than it otherwise would have gone.

    • You seem to insist on a relationship that says temperature is a function of only CO2. It isn’t, and you will never find such a simple function in nature. That hardly means CO2 doesn’t cause warming — it clearly does.

      • First BB claims my challenge is irrelevant because each core is local, and now he says it is a crackpot challenge because I don’t know anything about feedbacks. I hope this new complaint at least means he is backing away from his first crackpot objection: the majority of local T records certainly will reflect a global trend. As for feedbacks, I’ve been talking about albedo all along. Wouldn’t you consider albedo to be feedback rather than forcing? Hell, I played with electronic feedback circuits before you were born. So please cut the crap. You certainly are free to ban me for returning your perpetual insults, but don’t kid yourself that you have any scientific high ground here. Your criticism is about as valid as Appell’s there, who says I’ve limited the forcing to CO2.

        Hansen says there would be no ice ages without GHG feedback. Maybe you agree. I say BS. Consider a hypothetical earth with north/south symmetry, that is, with enough southern land mass at temperate latitudes to allow for alternating north/south ice ages. In Hansen’s world that could not work since GHG feedback would be eliminated. Again, I say BS. Here’s why.

        His GHG feedback is on the order of 1W/m^2. June insolation at 65N varies by as much as 100W/m TOA. The southern edge of the ice doesn’t care a hoot about Hansen’s one watt of GHG feedback. But when on a cloudless day at noon it gets an extra 80W of sunshine it starts to melt fast. When it melts faster than it snows it recedes. As it recedes it the expanding land behind it warms up, and when the wind blows from the south it just keeps melting. That’s the albedo feedback. Reduced cloudiness follows the glaciers receding edge too. That’s more feedback. This amounts to somewhere around 50W on top of the 50W of extra insolation the June sun brings to the bottom of the atmosphere. And Hansen’s fraction of a GHG watt doesn’t make a spit of difference. Yes, ice ages would work in this hypothetical symmetrical world.

        CO2 varies quite a lot for reasons other than M cycle forcing and at much higher frequencies. Consider the Vostok core at 130ky: http://en.wikipedia.org/wiki/File:Vostok_420ky_4curves_insolation.jpg

        CO2, CH4, 65N June insolation and T are all at a peak. J65N then plummets. Global insolation varies only slightly, less than GHG forcing/feedback, but that’s irrelevant. CO2 stays high while T plummets; CH4 tracks T for a while. T measures albedo, not GHG’s and not insolation. That is, T measures a single feedback, all others being insignificant. Enough J65N insolation can trigger things, but that’s about it.

        The original point was this: with all the independent fluctuations of CO2 and methane of unknown source, not correctly labeled feedback, we have plenty of opportunities to test greenhouse theory. But none of the little GHG spikes have corresponding T spikes. Over the long term they are clearly governed by albedo but over the short term they all do their own thing. No CO2 spike results in a T spike. Mighty strange considering the cabal has convinced the world our current big CO2 spike spells climate doom. –AGF

        • Your criticism is about as valid as Appell’s there, who says I’ve limited the forcing to CO2.

          I said no such thing. Read again.

          And if you can’t comment politely, then the heck with you. I don’t need your rudeness.

        • “The original point was this: with all the independent fluctuations of CO2 and methane of unknown source”

          Just because YOU don’t know what you’re talking about doesn’t mean that nobody else does.

          Just because someone told you that it’s unknown doesn’t mean it is.

          Something you will NEVER accept because you do not WANT to.

          This is why you are a denier, tried and true, balls-to-bones.

  16. […] Mann v. National Review et al. case (which I have previously written about here, here, and here) has the Free Speech Brigade out in force.  These people have, or at least pretend to have, such […]

  17. “If Mann sues us, the materials we will need to mount a full defense will be extremely wide-ranging”

    If National Review is making a claim, they must have evidence FOR that claim. If they don’t have it, then it doesn’t matter what Mann has.

  18. On “defence of truth”, this statement:

    “The fact that Professor Mann’s hockey stick research is still taken seriously in the public debate is an indication that people haven’t read the Wegman Report to the House Energy and Commerce Committee, the National Research Council’s report, or the analysis of Stephen McIntyre and Ross McKitrick.”

    I wonder: can it be proved? Can it even be shown as viable conjecture?

    No.

    Especially since the NRC report shows that the MBH results were valid, hence CANNOT be, by any means WHATSOEVER, be considered as indication that Mann’s Hockey Stick Research ™ should not be taken seriously.

    Can the report of M&M indicate such?

    No.

    The errors in M&M’s paper are wide ranging and egregious and nobody looking to discover “who is right” has largesse to take a contrary position as being indication, per se, that the hockey stick should not be taken seriously. Since they must, as a duty of care, investigate the counter claims for validity too.

    How about the Wegman report?

    No.

    For much the same reason as the M&M paper, with the added proviso that the work of Wegman is ALREADY taken as suspect by the proven claims of malfeasance of Wegman.

  19. Ya know, every now and then someone with a nice shiny new userid comes along and posts claims that others have been brought up similarly.

    Just ‘oogling the assertion would turn up the places where other nice shiny new userids over literally years and many blogs have made the same claims — and those have been patiently researched, with help akin to what that same shiny new user would have been able to get by going to the local public library and asking for help.

    And after a while that somewhat chastened new user has time and time again either been convinced, and comes ’round to say, “well, yeah, if you want to use _facts_ ….” — and by that point will have learned something — or else the person just gets huffy and leaves the conversation.

    And a while later, some other userid comes along and copypastes the same belief, untouched by any thought.

    It’s like plagiarism in reverse. Getting all of the belief, and none of the learning, that’s happened in the past.

    I suggest they just copypaste a simple assertio, like:

    “I don’t know, I won’t know, I can’t know, and besides Al Gore was fat and now the man from Mars is a Vegan …”

    Recreational typing. Sigh.


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