The Gallo Case - Part 2    Part 1  Part 3  Part 4  Part 5

Part 2 - Contents
VI. ABUSE OF THE RICHARDS PANEL BY NIH  pp 409-419
VII. THE INTEGRITY OF SCIENTIFIC CONSULTATION  pp 420-438 
VIII. INTERLUDE: JOURNALISTIC OBSTRUCTIONS  pp 439-441
IX. AN EXCHANGE WITH GALLO  pp 442-466

Note: Page numbers refer to corresponding pages in the paperback edition of the book "Challenges"

VI. ABUSE OF THE RICHARDS PANEL BY NIH 

We now return to the role of the Richards Panel in the OSI Report. I have a number of criticisms involving this panel: 

Healy obtained the panel's views by asking the members to return a questionnaire concerning the investigation. The first question was: "Does the report show that the investigative process was thorough and pursued the issues appropriately'?" This question fits under the first item which I criticize above. The panel's answer was: 'We believe that the collection of physical evidence, the investigation of the facts, and the interviews of the witnesses were thorough and appropriate. However, we believe that certain of the analyses and conclusions of these investigations are flawed. The problems are discussed below." Of course, I have no direct information about the collection of physical evidence, the investigation of the facts, and the interviews of witnesses. But the critique by Suzanne Hadley of the "draft" report gives indications that all three were insufficient and that documentation available to NIH was withheld from the Richards Panel. Short of contacting Suzanne Hadley herself or outside sources such as the Dingell Committee, there was no way the panel could know what material was withheld from its considerations. 

In answer to a second question by Healy: "Are the issues/ allegations stated properly in the proposed final report?," the 

panel answered: "Yes. This aspect of the Report represents a very good job." However, Crewdson's documentation concerning possibly false statements by Gallo in his patent application was not dealt with in the OSI Report. Nevertheless, the panel answered "yes" to the third question whether "the proposed final report addressed all the issues that should be addressed." 

On the other hand, the panel answered "no" to the question whether "all of the issues were appropriately covered." It stated:"'Each of the allegations raised against the Popovic et al. paper is considered independently in the Report and in no obvious or stated order of priority. This tends to trivialize the significance of the findings. The Conclusion section castigates the overall level of accuracy of the paper, but fails to integrate the findings into a larger context, namely a pattern of behavior on Dr. Gallo's part that repeatedly misrepresents, suppresses and distorts data and their interpretation in such a way as to enhance Dr. Gallo's claim to priority and primacy." The panel then went on to detail a list of events which document such a pattern. I cite one of them to give the scientific flavor of the Richards Panel answer: 

The conclusions of 'intellectual recklessness of a high degree" and "intellectual appropriation" are remarkable. This was the first time any "official" body said any such thing. 

I was especially concerned with the role played by the National Academy of Sciences. After its top officials nominated the panel, they subsequently evaded the responsibility to insure the integrity of scientific consultation, as illustrated in the following exchange of letters. I first wrote to the Council of the Academy on 5 April 1992, concerning Gallo's election in 1988. 

My Letter to the NAS Council 

To the Council
National Academy of Sciences
2101 Constitution Ave. 
Washington, DC 20418 

Robert Gallo was elected to the National Academy of Sciences in 1988. John Crewdson's book-length article in the Chicago Tribune of 19 November 1989 started nationally a long train of questioning of scientific practices by Gallo. Following a request by NIH, the Academy "developed a list of nominees to oversee the review by the National Institutes of Health of the circumstances leading to the discovery of the AIDS virus and the allegations about the research practices of Dr. Robert Gallo." [Letter from Frank Press to James Mason, Assistant Secretary of Health 13 March 1990.1 The panel thus nominated by the Academy was chaired by Fred Richards. 

The latest article by Crewdson in the Chicago Tribune of 27 March 1992 quotes extensively from a report by the Richards Panel to NIH. I reproduce here some paragraphs from Crewdson's article: 

Gallo's nomination and support for election to the NAS in 1988 was based in large part on his purported contributions to discoveries concerning the AIDS virus. The information that has since come out publicly (but there are indications that it was previously known to some researchers in his field) strongly indicates that Gallo was nominated and elected to the Academy under a questionable representation of his work. 

Therefore, both as a member of the NAS and a member of the scientific community at large, I ask the Council to start a public investigation of the merits of Gallo's nomination and election, because the National Academy of Sciences is responsible and accountable to the scientific community at large for its standards, as well as for promoting standards and setting examples of standards. Membership in the NAS is taken seriously by some people, who see it as bestowing scientific credibility and certifying scientific 

achievement. I am aware that the bylaws of the Academy do not have provisions for the resignation of someone from the Academy. But the question whether anyone-Gallo in the present instance-is to resign from the Academy is not the only question that needs to be addressed, nor in my opinion is it such an important one. The Academy could very well clear itself by admitting publicly to having been misled (it remains to be determined by whom and how), without taking the statutory step of forcing Gallo's resignation. 

Sincerely yours, Serge Lang 

cc: John Crewdson, Robert Gallo, Fred Richards, Edward David - COSEPUP Panel, Gérard Debreu (Chair, Social Science Class of the NAS), etc. 

Enclosure: Crewdson's article of 27 March 1992. 

In a PS to this letter, I recalled the open letter by John Cairns to an officer of the NAS, published in Nature (I I July 1991, p. 101). Excerpts from this letter are reproduced in the chapter on the Baltimore case, which was the original context of the letter. Here in the context of the Gallo case, I reminded the Council that I wrote to the Council on 25 February 1990 objecting to Gallo's election even at that time. I deplored how "the natural tendency of the higher-ups in the NAS has been toward secrecy, looking the other way, taking the limited hang-out route, refusing internal, let alone public discussion about certain issues.... The Council of the Academy and the Academy itself, have to make a choice as to the leadership they will provide. The history of the past two years shows that the Academy's failure of responsibility is continuing exactly as I described it in 1990." 

Other NAS-Related Correspondence 

I received a terse reply dated 8 May 1992, from the NAS Home Secretary Peter Raven. He informed me that the Council discussed my letter concerning Gallo, and asserted: "The Academy will not 'undertake a public investigation of the merits of Gallo's nomination and election' as you requested.' 

A month later, on 4 May 1992, I wrote directly to Frank Press, President of the NAS: 

Dear Dr. Press, 

   1. On 15 February 1990, the HI-FS Assistant Secretary James Mason wrote you: 

You agreed to cooperate with NIH and HHS in this matter, and accordingly you wrote to James Mason on 13 March 1990 to nominate the members of such a panel,

In his press conference of 5 October 1990, NIH Acting Director William Raub made use of the prestige of the NAS by stating: "The consultants nominated by the National Academy of Sciences and the Institute of Medicine will continue to provide oversight and guidance as they did during the inquiry.^l

Now, two years later, as reported by Crewdson in the Chicago Tribune of 27 March 1992, we learned that the Richards Panel had indeed issued its judgment of the NIH inquiry and of Gallo's practices, and that this judgment was unfavorable. As quoted by Crewdson, the Richards Panel blamed the NIH report for not presenting its findings "in a larger context' which would show 'a pattern of behavior on Dr. Gallo's part that repeatedly misrepresents,

¹ Incidentally, I was very critical at the time of what was said at this press conference and the way the Richards panel approved what was said, but this is another issue. 

suppresses, and distorts data and their interpretation in such a way as to enhance Dr. Gallo's claim to priority . . . intellectual recklessness of a high degree . . .intellectual appropriation of the French viral isolate . . . 

However, NIH and HHS decided not to accept the judgment of the Richards Panel. In an article headlined 'NIH Vindicates Researcher Gallo in AIDS Virus Dispute" (Washington Post 26 April 1992), Malcolm Gladwell wrote: 'In making her decision to approve the Gallo report without major changes, [NIH Director] Healy considered-but ultimately did not accept-the advice of a panel of outside consultants who said the report was too mild in its criticisms of Gallo.' Gladwell also casts aspersions on the judgments of the Richards Panel. Thus NIH and HHS throw down the gauntlet via the press. At the same time neither the NIH Gallo Report nor the Richards Panel Report have been made officially public even though they are available to some reporters! 

The current scenario involving the NAS, NIH, HHS, and the Fred Richards Panel is worthy of Kafka and Ionesco. 

  2. NIH and HHS have been less concerned with the integrity of science than with leaks of the NIH investigation, leaks of the Richards Panel report, covering up and muzzling scientists. Indeed: 

  (a) Dan Greenberg's Science and Government Report of I April 1992 states:   

Healy's appeal to the FBI was likewise mentioned in Crewdson's article of 27 March 1992 and in Science (Official Doubt on the AIDS Test Patent, 3 April 1992),

both quoting Healy's letter to the FBI agent, to the effect that the leaks have 

  (b) Another Science article (The Richards Panel Tosses a Curve, 3 April 1992) states: 

Thus we find scientific and intellectual corruption against a backdrop of financial concerns at the highest levels of the science establishment. As far as I am concerned, the NIH and HHS have discredited themselves by their cover up and their muzzling of the panel nominated by the NAS. 

Thus we also find scientists accepting to "oversee' under conditions of confidentiality instead of refusing to do so because of their responsibility and accountability to the scientific community at large. Since the NAS was solicited publicly by NIH to oversee the Gallo investigation, and the NAS accepted publicly, the NAS and the Richards Panel are now accessories after the fact unless they act publicly to the contrary. Unless the NAS and the members of the Richards Panel publicly object to the way they were used and abused by NIH, they will also discredit themselves. 

3. The breach of trust by NIH-HHS vis-à-vis the NAS, the tacit acceptance of this state of affairs (so far) by the NAS and the Richards Panel, and the behavior of NIH-HHS toward those scientists who try to bring truth to the public, constitute a profound breakdown in the standards and credibility of the scientific establishment. As a scientist, as a member of the NAS, as a member of the academic community, and as a citizen, I wish to record here my unmitigated disgust. 

Serge Lang 

cc: Fred Richards, John Crewdson, Dan Greenberg, John Dingell, etc. 

Frank Press replied officially in his capacity as NAS President, on 7 May 1992: 'I have your letter in which you register unmitigated disgust with the Gallo investigation and the role of NIH-HHS and the NAS. It was clear to both the NIH and to the Academy that our role in the matter was to provide to NSF [sic) names of reputable scientists qualified to serve in an advisory role. Regardless of what individuals have stated publicly, it was clear to NIH and to the Academy that this was to be an exclusively NIH committee with no further role for the Academy than to suggest names. We have served in the role of identifying experts on numerous occasions for many organizations, both public and private.' 

I wrote back on 14 May 1992: 'This is to acknowledge receipt of your letter of 7 May 1992, which to me is verbiage. I do not understand the relevance of your phrases starting with 'it was clear...,' and I wonder about their role in your letter. There is an innuendo in those sentences that somehow I am not representing the situation properly in my own letter. However, what 'was clear' to whoever is irrelevant, and I object being put in a position of having to consider what 'was clear to both the NIH and to the Academy.' I commented on the record as it exists, not as people might rewrite it. In my letter to you I quoted correctly and in context from the exchange you had with James Mason, and I quoted correctly and in context from Raub's press conference. I therefore stuck to the record and I ask others to evaluate those concerned on the basis of this record. I hold people involved in this record responsible and accountable for their actions. I stand by what I wrote.' 

These exchanges document the way top officials of the NAS evaded taking responsibility for supporting the panel which they had nominated. 

Opinions in the Academy are of course not monolithic, and I have no idea how many people share my viewpoint. Some members of the NAS wrote in support of the point of view expressed in some of my mailings, e.g. Jack Steinberger wrote to me to express '100% support', and Philip Siekevitz wrote to Frank Press (9 September 1992): "... the members of the committee selected by the NAS and the IOM were used by the NIH, indeed were misused. In your correspondence with Dr. James Mason, you point out that the group selected was not an 'NAS group' and should not be identified as such. However, I do not think you can get the NAS off the hook completely. Since the NAS did the selection, it should back up the members of the group, it should not dismiss its responsibility to the members of the group in its battle with the NIH. I think that an honorable duty would be that the NAS 

castigates publicly, how its members were treated, demand an apology from the NIH for its dismissal of the findings of the members selected by the NAS re the 'Gallo Affair.'
  For one member of the Academy who does not agree, I mention Freeman Dyson. In his article 'Science in Trouble" (American Scholar, 62, 1993, pp. 513-525), he wrote: 

I am amazed by Dyson's statements on several counts. First, the Home Secretary had categorically written to me that the Academy would not undertake a 'public investigation' of the merits of Gallo's election, as I requested. Two letters from me to Dyson asking for more information about the NAS Committee remained unanswered. My experience with the NAS was the opposite of Dyson's: publicly, the Academy totally kept from taking any responsibility in the Gallo case, as documented above. Upon checking with a staff member of the Academy, I was told that Dyson's reference, as far as this staff member knew, was to the Richards Panel, and that Dyson gave a misleading impression with his sentence: 'I was recently invited by the Academy to serve on a committee to investigate the alleged violation of ethical standards by the biologist Robert Gallo.' Nevertheless, I don't know of any public, on the record correction to the Dyson article, either by him or by the Academy. 

Second, I find Dyson's comparison between the Gallo and Oppenheirner cases to be flabbergasting from a historical point of view. Both cases are sufficiently famous so that I win leave to others their evaluation of Dyson's comparison, without any further comment here. I merely want to mention one important case of a famous member of the NAS who holds opinions quite divergent from mine. 

VII. THE INTEGRITY OF SCIENTIFIC CONSULTATION 

I thought the responsibility of the NAS was to play an active role in maintaining the integrity of scientific consultation to the government. Having failed to arouse the interest of top officials of the NAS, I contacted the Section Chairs by writing to them directly. I never received an answer from any of them to the following letter dated I September 1992. The letter was accompanied by 40 pages of enclosures, giving primary sources for my assertions, and listed at the end o the letter. 

To all Section Chairs
National Academy of Sciences

NIH investigated the Gallo case as a result of John Crewdson's major journalistic contribution in the Chicago Tribune of November 1989. NIH and HHS involved the NAS by soliciting the nomination of a panel of independent consultants to enhance the credibility of the Investigation. However, NIH and HHS subsequently betrayed their commitment to the panel and to the NAS. I shall therefore deal here with a major issue, which arose in the Gallo case, but transcends the Gallo case, namely:
The integrity of scientific consultation for the government is at stake,¹ especially concerning the involvement of the National Academy of Sciences.

Footnotes for page 420
¹ Also at stake is the integrity and credibility of NIH and HHS. There is evidence that NIH misrepresented certain facts and suppressed evidence unfavorable to Gallo, both in the Final Report from Its Office of Scientific Integrity (OSI) and in the cover letter by NIH Director Bernadine Healy forwarding the report to James Mason. The article on the OSI Final Report in Chemical and Engineering News (11 May 1992) gave some evidence to this effect, and was accompanied by a boxed boldfaced editorial comment: 'Report raises questions as to whether NIH, HHS can objectively investigate prominent scientists.' (Copy enclosed.) 

Dan Greenberg in Science and Government Report I June 1992, quotes excerpts from a 'dissent and critique" prepared for the Dingell Committee (copy enclosed). Some conclusions from these excerpts state: 'The Office of Scientific Integrity (OSI) 'Final Report' concerning Dr. Robert Gallo's research on the AIDS virus is a deeply flawed document reflecting an incomplete investigation. . . . A number of the OSI arguments and conclusions cannot be substantiated: a number are flatly refuted by the evidence. Moreover, in a number of instances, OSI has failed to deal with and even mention highly significant pieces of evidence known to be in its possession. Perhaps most serious, the final OSI Report gives only superficial, misleading consideration to the implications of the highly significant virus sequencing studies. As a result, the OSI has irresponsibly evaded the central question in the entire investigation, the question of Gallo's possible misappropriation of the Institut Pasteur HIV isolate, LAV. . . ." 

However, in the present letter I concentrate on the issue of respective responsibilities between the NAS, NIH-HHS, and the Richards Panel nominated by the NAS to "oversee" the NIH investigation.

I am addressing this mailing to you for direct action on your part at the grass roots. 

Responsibility of the NAS via HHS and NIH. On 15 February 1990, HHS Assistant Secretary James Mason wrote to Frank Press (President of the National Academy of Sciences): 'With a view to insuring both the fact and appearance of objectivity by the inquiry, Dr. William Raub, the Acting Director, NIH, has asked me to solicit the assistance of the National Academy of Sciences (NAS) in nominating candidates for a special advisory panel ... to make informed, unbiased judgments about the issues raised in the Chicago Tribune article.' Frank Press and Samuel 0. Thier (President of the NAS Institute of Medicine) agreed to nominate the members of such a panel "to oversee the review by the National Institutes of Health of the circumstances leading to the discovery of the AIDS virus and the allegations about the research practices of Dr. Robert Gallo.' 

Betrayal of commitment to the NAS. The subsequent history shows that HHS and NIH betrayed their commitment to the NAS (and to the scientific community at large) in several ways, among which: 

- NIH extracted a 'Confidentiality Agreement" from the members of the Richards Panel, thus muzzling these consultants. 
- NIH operated in such a way that the Richards Panel could not "oversee" the investigation, as specified by Frank Press and Samuel 0. Thier. 
- NIH withheld information from the OSI Report on which the Richards Panel was asked to comment. 

- NIH Director Healy used other consultants of her own choosing to override the Richards Panel. 
- NIH Director Healy undermined the Richards Panel in the press. 
- NIH Director Healy distorted and improperly represented the views and reports of the Richards Panel members. 

In an appendix, I shall provide detailed documentation on these items, showing how seriously the integrity of scientific consultation was compromised. However, I mention one aspect of the Confidentiality Agreement here because it involves the NAS specifically. The Agreement concludes with the sentence: 

The invocation of the NAS in this Confidentiality Agreement ("reporting such failure to the National Academy of Sciences") makes the NAS an accessory to the fact by implication. It is now incumbent on the NAS either to take direct responsibility for the Confidentiality Agreement or to repudiate this Agreement and the way the NAS was invoked in this Agreement. 

I hope that you and the scientific community will go along with the model provided for us by Feynman when he was on the Challenger Commission. At all times Feynman preserved and used his prerogative to inform and analyze publicly.² I am also appealing to the Dingell Committee to help the scientific community in having this Confidentiality Agreement abrogated. 
 
Conclusions. Integrity of scientific consultation destroyed. On the basis of the documentation I am providing for you, I conclude that far from using the NAS to provide an independent panel to 'oversee' its investigation, 'with a view to insuring both the fact and appearance of objectivity by the inquiry," NIH-HHS are insuring both the fact and appearance of a cover-up. Indeed, NIH-HHS have shown that if such a panel comes to conclusions opposed to the views of the NIH Director, then this Director manipulates the panel, muzzles the panel, treats that panel improperly, undermines the panel in the press, disregards its views, misrepresents its views, and selects other advisers who can be relied on to reflect the views of the NIH Director. Thus the NIH Director, and HHS, which has the ultimate responsibility, destroy the integrity of scientific consultation, which involved the NAS.

Future scientific consultation compromised. Various publications have reported the disenchantment of the members of the Richards Panel, and their wariness of consulting for the government in the future because of the way they have been treated by NIH-HHS. Science (8 May 1992) reported this disenchantment anonymously, presumably because of the Confidentiality Agreement: 

Footnotes for page 424
² Feynman wrote up his experiences in the article "An Outsider's View of the Challenger Inquiry' (Physics Today, February 1988). About communicating with the press he wrote: 'I did, however, keep talking to the press--openly, always giving my name. I didn't want any hocus-pocus about 'unidentified sources,' or anything...." For more of the Feynman model, see footnote 4. 

I do not go along with this last editorial evaluation in Science. To me, one of the worst aspects of the chasm between Healy and her independent consultants is that the integrity of scientific consultation for the government has been compromised, because top officials of NIH-HHS have betrayed their responsibilities toward science, toward the scientific community, and toward the NAS. Furthermore, I object to characterizing Dingell as an adversary of NIH. Dingell is a supporter of NIH in the broad sense, and defends NIH in the long run against the actions of certain high officials (including NIH Director Healy) who are now compromising the integrity of NIH. 

NAS evasion of responsibility. The NAS has taken no action that I know of to protest the way the NAS and the Richards Panel have been used and abused by NIH-HHS. I wrote to Frank Press last spring, concerning the responsibility of the NAS, but his reply was evasive (copies of the exchange are enclosed). Since the responsibility of the NAS is also involved via Gallo's election to the NAS in 1988, I wrote to the NAS Council to ask for a public investigation of possible misleading presentations, or misrepresentations, of his scientific contributions on that occasion. The Council replied that there would be no such investigations.³
 

I object to the abdication of responsibility by the President of the NAS and by the NAS Council in the face of the NIH-HHS failures of responsibility, especially toward the NAS which was directly involved. Therefore I ask you to read my letter to Frank Press and my letter to the NAS Council as if they were addressed to you. Since the Council refused a public investigation, and since Frank Press did not use his leadership possibilities to object-let alone object strenuously-to NIH and HHS for their handling of the Richards Panel, I am now turning to you directly with further Information for action on your part at the grass roots.

Footnotes for page 425
³ Copy of the correspondence is enclosed. The exchange was reported in Science (5 June 1992) under the heading 'Gallo wins one...". The Council's reply to me was thus interpreted by Science as a victory for Gallo. 

For a start, I urge you to send a copy of this mailing to every member of your section.

          Serge Lang 

cc: Frank Press, Council of the NAS, Robert Gallo, Bernadine Healy, Louis Sullivan (Secretary, HHS), James Mason (Assistant Secretary, HHS), Michael Astrue (General Counsel, HHS), Members of the Richards Panel, David-COSEPUP Panel, Representative Dingell, John Crewdson, Science and Government Report (Dan Greenberg), Science (David Hamilton, Ellis Rubinstein, Fay Flam, Constance Holden, Daniel Koshland), Nature (Barbara Cuuiton John Maddox), New York Times (Philip Hilts), Washington Post; (Malcolm Gladwell), and the rest of the cc list of about 250 people. 

Enclosures 

What They Said
Exchange of letters between James Mason and Frank Press- Samuel 0. Thier, February-March 1990.
Exchange of letters between Lang and the NAS Council and Frank Press, April-May 1992.
Confidentiality Agreement.
Cover letter from Richards to Healy, 19 February 1992.
Comments by Fred Richards on the OSI Report, January 29 and 30, 1992.
Cover letter from Healy to James Mason, 27 March 1992.
Letter from Healy to Richards, 11 May 1992.
Reply from Richards, 12 May 1992.
Letter from OSI Director Jules Hallum to Healy, 20 March 1992. 'NIH Clears Gallo, Patent Probes Go On,' Chemical and Engineering News, I I May 1992. 'Dissent and Critique" from Dan Greenberg's Science and Government Report, I June 1992. 

APPENDIX 

Improper Use and Abuse of the National Academy of Sciences by HHS and NIH and Distortions of the Views
of the Richards Panel by NIH 

This appendix documents several ways the Richards Panel was improperly treated by NIH, especially by NIH Director Bernadine Healy. 

To a large extent, organizations have to rely on trust, because one cannot verify everything all the time. I provide documentation that neither the Gallo investigation by NIH nor top officials of NIH and HHS can be trusted. When trust breaks down because of institutional failures, the workings of an organization are shaken, and it is very complicated, time-consuming, and energy-consuming to engage in setting matters straight. When challenging official reports, I don't ask to be trusted. Although my documentation may appear bulky to some people, I think it is essential that you see the documentation so that you can form your own judgment. This appendix is meant as a preliminary guide. 

§1. Muzzling the Richards Panel: The Confidentiality Agreement

Originally the Richards Panel expected to speak out as reported in Science (22 June 1990) by Barbara Culliton, who wrote: "Sources say [Richards] committee members have promised not to discuss their deliberations until they are complete. At that point, they expect to 'speak out loud and clear." -But it turned out very differently. At about the same time that the members of the Richards Panel saw the OSI Report in January 1992, they signed a Confidentiality Agreement presented to them by NIH. A copy of the Confidentiality Agreement is enclosed. 

The existence of this Agreement was reported in the press, e.g. by Science (The Richards Panel Tosses a Curve," 3 April 1992): 'Members of the panel contacted by Science declined to discuss their report, privately expressing their frustration with a confidentiality agreement they were forced to sign by NIH.' The Science article does not specify in what way they were "forced.' The reader is thus left to wonder what is this overpowering force which NIH exercised over presumably independent scientists. NIH cannot insure "the fact and appearance of objectivity by the inquiry" unless the members of the Richards Panel are available to answer  directly questions raised by members of the scientific community about their reports.

I am shocked that the members of the Richards Panel accepted to sign this Confidentiality Agreement, thereby abdicating their responsibility to inform and respond to the scientific community directly at crucial times. 

Indeed, versions of the OSI Report and the Richards Panel Report have been available to the press. At a time when newspapers such as the Chicago Tribune, New York Times, Washington, Post, and the scientific press such as Science, Nature, Science and Government Report, Chemical and Engineering News have quoted and commented extensively on these documents, and the NIH Director herself has used the press to undermine the Richards Panel (see §4 and §5), it is particularly important that the members of the panel be available to answer questions publicly about these documents and other matters. 

The Agreement contains a clause: 'Notwithstanding the preceding sentences in this paragraph nothing contained herein shall bind the signer to refrain from commenting on the Final Report of this investigation, if and when it is publicly released in an authorized manner.' This clause gives rise to another piece of manipulation. By letting the Richards Panel speak out only after the OSI Report is "publicly released in an authorized manner,' HHS and NIH are allowed in the meantime to misrepresent, suppress, and distort data with impunity, to support the exculpatory views of NIH Director Healy (cf. the conclusion of this Appendix). Without speaking out, the Richards Panel becomes an accessory to these misrepresentations, suppressions, and distortions. With the above clause, NIH and HHS not only forbid the Richards Panel from countering their manipulations and misrepresentations as they occur, but they have the prerogative to postpone, perhaps indefinitely, a public release "in an authorized manner,' thus muzzling the Richards Panel possibly for a long time, if not indefinitely. However, it turned out that some members of the Richards Panel expressed their discontent to the press anonymously, so NIH was not entirely successful in its muzzling attempts. 

§2. The Richards Panel Did Not "Oversee" the OSI Investigation

Although according to the letter from Frank Press and Samuel 0. Thier to James Mason, the Richards Panel was to 'oversee" the NIH investigation, the panel did no such thing. I shall present two pieces of evidence for documentation. 

(a) Bypassing of the panel. When the OSI Draft Report came out in 1991, the Richards Panel was at first bypassed, as reported by Crewdson (Chicago Tribune, 17 June 1991): 

The abrupt cancellation of the May 20 meeting was also later reported in Science (21 June 1991): 

(b) No gumshoe work by the Richards Panel and suppression of evidence by NIH. The panel ultimately commented on a document which was presented to them, apparently with no attempt to find out, for instance, if evidence was withheld from them. In other words, they did not do 'gumshoe" work.⁴ There is some evidence that NIH suppressed information in its Final Report, and that the Richards Panel did not "oversee' this suppression. To some extent, the Richards Panel was maneuvered out of the possibility of overseeing this suppression.⁵ Some specific items will be mentioned in the next paragraph.


Footnotes for page 430

§3. Lack of Verification of the OSI Final Report 

The OSI Final Report was issued 18 March 1992, and was forwarded by Healy to James Mason with her cover letter of 27 March 1992. However, the response of the Richards Panel 'Response to the charge to the consultants...' is based on a version of the report put out in January 1992. Three changes were made in the meantime, between January and March, as stated factually in a 20 March 1992 letter from OSI Director Jules Hallum to Healy. (A copy of this letter is enclosed.) Healy stated in her cover letter to Mason that these changes were only in "three minor respects.' However, according to the letter from Hallum to Healy, one of these respects was "a short summary of the OSI- commissioned HIV sequencing analysis and its significance to the investigative findings." This summary of the sequencing analysis confirms that the isolate HTLV-IIIb, which was used by Gallo to test his HIV blood test, actually is LAV-LAI (i.e. the French virus). I therefore challenge Healy's characterization of this sequencing analysis as a 'minor respect.' In any case, the final version of the OSI Report contains items which were not in the version of the OSI Report made available to the Richards Panel in January 1992. 

Even more significantly, the OSI Final Report f"s to include some important findings and implications of the sequencing analysis. For instance, the summary does not mention that MO(V), another isolate used by Gallo to make and test his HIV blood test, is also LAV-LAI.⁶ A fortiori, the Richards Panel had no opportunity to comment on these findings. 

What is the point of nominating a panel of consultants to oversee" "with a view to insuring the fact and appearance of objectivity" and to get 'informed, unbiased judgments" if the members of this panel are not even shown the final version of the OSI Report nor asked to comment on this final version, and if important findings such as those of the sequencing analysis are not even included in this final version? NIH and HHS undermine their own credibility by having failed to submit the complete findings of the sequencing analysis to the scrutiny of the Richards Panel in the January 1992 version. 

By depriving the Richards Panel of the opportunity to see certain additions in the OSI Final Report, and to understand what was omitted before they put out their comments,


Footnotes for page 431
⁶ On the other hand, these results of the sequencing analysis are mentioned In the excerpts from the "Critique' quoted by Dan Greenberg, see footnote 1. 

NIH impaired the Richards Panel's ability to evaluate the decision by NIH not to determine the extent to which the use of the French viral isolate by Gallo was inadvertent, and not to pursue the investigation on this central point. 
 

§4. Overriding the Richards Panel with Other Consultants 

When Frank Press and Samuel 0. Thier agreed to nominate a panel to oversee the NIH investigation, they took seriously and in good faith the stated intent by HHS to insure 'the fact and appearance of objectivity by the inquiry.' As a result, they specified that HHS would use only their nominees on the panel. This point was of such importance that it was specifically reported in the press, for instance by Barbara Culliton in Science ('NIH Goes the 'Extra Mile' on Gallo," 23 February 1990, p. 908): 'Press and Thier have agreed to propose such a panel with the stipulation that Mason confine his selection to that list and agree not to add anyone recommended by the government, which can be said to have a stake in the outcome because it is a signatory to the U.S.- French agreement...." NIH Director Bernadine Healy breached the spirit of the understanding between HHS and the NAS by using 'her own committee of advisers" above and beyond the Richards Panel. To the extent Healy used her own advisers (who were therefore chosen by the government and not the NAS) to override the Richards Panel, she went against one of the criteria given by the presidents of the NAS and of the NAS Institute of Medicine to insure an independent overseeing of the OSI investigation. What credibility can then be attributed to NIH and HHS officials, to the NIH investigation itself, and to its exculpatory conclusions? 

When the Richards Panel delivered its comments, NIH Director Healy not only referred these comments to 'her own committee of advisers,' but she also used these advisers and the press to undermine the credibility of the Richards Panel. She put forth public statements to the effect that Gallo had convinced her and 'her own committee of advisers' that Gallo had 'compelling' objections to the report of the Richards Panel, without NIH or Gallo being accountable on the record for their stand. For example, Barbara Culliton wrote in Nature (7 May 1992): 

Thus Healy and her other consultants achieved an exculpatory effect via Nature, but they acted improperly vis-à-vis the Richards Panel and the NAS. Culliton's article documents:
  - The irresponsibility of NIH and HHS in allowing a situation to develop when the scientific community is informed through such press articles, without NIH or Gallo being accountable on the record for their respective positions.
  - Improper manipulation of the Richards Panel by NIH, which did not give the panel a chance to evaluate and answer Gallo's rebuttal, or the opportunity to have the panel's point of view accessible on the record to the scientific community. I don't see any justification for having Gallo's "interrogation' carried out before Healy's 'own committee of advisers" and not before the Richards Panel itself, on the record.
  - The undermining of the Richards Panel in the press by NIH Director Healy and her other consultants. 

§5. Healy Undermining the Richards Panel in the Press 

Not only did Healy use Barbara Culliton in Nature to undermine the findings of the Richards Panel in the press, but she also used the Washington Post. Malcolm Gladwell's article "NIH Vindicates Researcher Gallo in AIDS Virus Dispute' (Washington Post, 26 April 1992) was based on the OSI Final Report and a discussion about the report with Healy, thus giving rise to an item in Science (I May 1992) under the heading: 'NIH Leak Policy Honored in the Breach.' This item started: 'When is a leak not a leak? Answer: When it comes from the head plumber....' 

In his article, Gladwell undermined the Richards Panel, for example as follows: "The Richards Panel neither met with Gallo during the course of its deliberations nor gave him a chance to respond to accusations. When Healy met with Gallo last month and gave him for the first time an opportunity to defend himself against the consultant panel's charges, she found many of Gallo's answers convincing, she said later." These sentences are highly tendentious on several counts. First, Gallo did meet with some members of the Richards Panel in July 1991 and gave a presentation of his point of view.

Second, in §2(a) above we have seen how Healy did show the OSI Draft Report to Gallo, thus giving Gallo a chance to respond. Third, the Richards Panel comments were based on the documentation provided by the January 1992 version of the OSI Report, which had already taken Gallo's response into account.⁷ Fourth, concerning Healy's meeting with Gallo and what "she said later,' we have seen in §4 how Healy improperly treated the Richards Panel when she interrogated Gallo in front of other consultants instead of interrogating Gallo in front of the Richards Panel. 

Thus we see how Healy and the Washington Post cooperated to discredit the Richards Panel and its conclusions. 

§6. Healy's Distortions and Misrepresentations of the Views of the Richards Panel 

(a) Healy's exchange with Fred Richards. On II May 1992, Healy wrote to Fred Richards: '... OSI findings pertinent to Dr. Gallo's management and scientific leadership will be forwarded to [a subcommittee of the National Cancer Advisory Board]. This will include your written comments on the OSI Report and the doubts you have expressed to us about these comments based upon a conversation you had with Dr. Gallo." 

This last sentence is improper on several counts, for instance because Healy states that the Richards Panel had "doubts" about their comments. The very next day (12 May 1992), Fred Richards countered in a reply: "I have no doubts about our comments then or now. In our phone conversation I specifically stated that the Comments were based on the written report from OSI, and that, if there were relevant errors of omission or commission in that report, some of the Comments might be reexamined by the panel, but a single hurried phone conversation with Dr. Gallo is not an adequate basis for reconsideration.... To imply that the consultants may not stand behind the evaluation stated in the Comments would be a serious distortion of their views.' Science reported this exchange (The Last Gasp of the Richards Panel,' 22 May 1992).

Footnotes for page 434
⁷ In fact, the OSI Final Report suppressed testimony by Gallo concerning what isolates he had, when he had them, and what he could use them for. But this leads into an open-ended critique of the OSI Report, which is not our main object here. See footnote 1. 

(b) Healy's forwarding letter to James Mason. Nevertheless, when Healy forwarded the OSI Final Report to James Mason, she already invoked the Richards Panel tendentiously and also misrepresented the Richards Panel. In her cover letter of 27 March, she wrote: 

Healy's phrase 'substantially assisted by the knowledge, advice and perspective of the individual consultants' is tendentious in its suggestion that members of the Richards Panel would go along with her conclusions. Further on in her letter, Healy downright misrepresented the Richards Panel as follows: 

Note that Healy refers to "the consultants,' thus involving all the above-mentioned consultants without exception. I question the legitimacy of Healy's reference to 'the consultants.' The Richards Panel certainly did not regard the transgressions of Popovic and Gallo as "nickel and dime stuff." Healy's formulation of the alternative "inadvertent contamination or misappropriation" is also questionable. In fact, the Richards Panel charged 'intellectual appropriation." More precisely: 

- The Richards Panel blamed the OSI Report because it "fails to integrate its findings in a larger context, namely a pattern of behavior on Dr. Gallo's part that repeatedly misrepresents, suppresses, and distorts data and their interpretation in such a way as to enhance Dr. Gallo's claim to priority and primacy....'

- The Richards Panel further wrote: "Me Gallo lab 'went to school' with the French virus, yet they later failed to mention the fact that they had propagated the French virus. In fact, they denied propagation of the French virus and stated (in the Popovic et al. manuscript) that the French virus had never been transmitted to a permanent cell line. Given the quality of the information derived from propagation of the French virus, we believe that this constitutes intellectual recklessness of a high degree--in essence, intellectual appropriation of the French viral isolate...' (underlining in the original 

  'The statement that LAV [the French virus] had not been transmitted in a permanent cell line is simply false, and was known to be false at the time the paper was written. This is one of the most glaring faults in the paper and is part of the pattern of misrepresentation in the discussion of the problem of continuous culture. There is no way in which Dr. Gallo can be excused from sharing the blame for this misstatement." 

- In addition, some members of the Richards Panel have expressed publicly their disagreement with OSI and Healy, as when one member was quoted by David Hamilton in Science ('RICHARDS PANEL Scientists-Consultants Accuse OSI of Missing the Pattern,' 8 May 1992): 'I'd like it well known that we don't agree with NIH's decision.' That same article in Science also stated: 

Thus NIH Director Healy grossly misrepresented the Richards Panel, and some members of this panel reacted via Science, but anonymously. 

In summary, Healy forwarded the OSI Final Report to James Mason:    

Envoi
I can apply the words of the Richards Panel to the documentation and analysis I have provided here. I have integrated my findings in a larger context, namely a pattern of behavior on the part of top officials of NIH (especially NIH Director Healy) that repeatedly misrepresents, suppresses, and distorts data and their interpretation in such a way as to enhance Healy's claim that transgressions in Gallo's laboratory were merely 'nickel and dime stuff,' and that there was no 'misconduct' on Gallo's part. 

Unlike others who tend to formulate scientific standards in the straightjacket of legal terminology, I do not ask whether a generic word such as "misconduct" applies to the above pattern of behavior. However, I do ask the NAS and the scientific community whether they will tolerate this pattern without taking action against it. S.L. 

Update, January 1995
From the Dingell Subcommittee Staff Report

[After the appearance of the Dingell Subcommittee Staff Report, more information came to light about Healy's manipulations of the scientists around her. I quote from page 57 of this Staff Report.]

... Dr. Healy bypassed the [Richards] Committee and commissioned her own committee of NIH scientists whom she called her "wise men." Dr. Healy told her 'wise men" that everything about the committee and their participation would be completely confidential. 

In return, she--without any advance warning-required the committee members to sign a secrecy agreement. As a consequence, the very existence of the committee remained hidden for nearly two years. 

Despite Dr. Healy's efforts to handpick and control her "wise men,' they decided Dr. Gallo should be fired as an NIH laboratory chief One committee member expressed this determination as follows: 

Faced with a finding she clearly did not want, Dr. Healy convened a second meeting of her committee. At this meeting, the 'wise men," who had been assured that everything about the committee was entirely secret, suddenly found themselves confronted with Dr. Gallo and his attorney. The committee members were required to sit through a lengthy and entirely one-sided presentation by Dr. Gallo and his attorney in which all wrongdoing was denied, and in which it was suggested that Dr. Gallo was being hounded for accidental errors and inadvertent sloppiness in laboratory notekeeping-"that could happen to any of you.' At the conclusion of the meeting, Dr. Healy demanded a ruling from the committee as to whether Dr. Gallo had committed scientific misconduct. The committee members, who had examined none of the evidence, said they could not make such a judgment. 

Dr. Healy's immediate response was to grant interviews with the Washington Post and Science, during which she disclosed the existence of her committee, and claimed Dr. Gallo 'rather effectively refuted' the charges against him. At the same time, Dr. Healy quoted selectively from memoranda written by the committee members, attempting to trivialize the negative aspects of Dr. Gallo's conduct. Dr. Healy never acted on her committee's recommendation that Dr. Gallo be fired. 

VIII. INTERLUDE: JOURNALISTIC OBSTRUCTIONS 

My open letter of 1 September 1992, addressed to an Section Chairs of the National Academy of Sciences, reproduced in the preceding section, gave a summary presentation of the way NIH-HHS and NIH Director Healy mistreated the Richards Panel, nominated by the National Academy of Sciences to "oversee' the Gallo investigation at the request of NIH-HHS. In so doing, she undermined the integrity of scientific consultation. My open letter was backed up by enclosures consisting of 40 pages of documentation. This documentation is important in and of itself, independently of me, partly because it gives evidence for an objectionable pattern of behavior on the part of top officials of NIH (especially NIH Director Healy), namely a pattern of behavior that repeatedly misrepresents, suppresses, and distorts data and their interpretation in connection with the Gallo investigation and the role of the NAS-nominated panel. 

I submitted my 10-page open letter for publication in Nature. Nature's editor John Maddox asked that it be "drastically shortened." I refused to shorten it, and he refused to publish it. Although he wrote me that my open letter 'contains a great deal of interesting material,' he did not publish any of that material either, and so Nature's readers were not informed about the 40 pages of documentation which I sent out in the mailing of 1 September 1992. 

1. My responsibility. Since Nature's readers have not been properly informed of this documentation, which is independent of me, I refused to take responsibility for a "drastically shortened" piece in which I would have to inform readers about many facts and documentation which Nature failed to provide previously, while at the same time I would have to organize these facts in a pattern and provide an analysis of them. Let Maddox try to do this job in "drastically shortened" form and see how far he gets. It isn't for me to take Nature off the editorial hook by accepting to 

do a necessarily inadequate job with slivers of information and undocumented or poorly documented assertions or generalities, which would give the illusion of Nature being journalistically responsible, when in fact Nature's journalism has been defective for a long time, because Nature did not properly report the pattern of behavior of top NIH officials. 

2. Nature's responsibility. Maddox also replied to me: "Sadly, my long experience has taught me not to consider publishing contributions from people who say that their contributions cannot be shortened." Maddox thus transfers the responsibility of non-publication to me. However, it is for Maddox to treat the matter as one of professional responsibility to inform Nature's readers, rather than one of personal dealings with me. Maddox's answer is defective on several counts: 

(a) He covers himself with a universal criterion about 'people,' as if the problem he was facing was due to a defect in me (among other 'people'), instead of dealing with the merits of the given situation. Different amounts of documentation are needed at different times to deal with different issues, as far as I am concerned, but not according to the answer Maddox gave me. He bases his editorial decision whether to publish "interesting material' only on a factor having to do with 'people' who submit material to his attention, and not on the merits or the importance of the documentation in relation to the case under consideration. 

(b) Even though he accepted that there was 'a great deal of interesting material,' he makes no analysis of the significance and coherence of this material, nor does he even consider taking upon himself the responsibility of shortening this material. For instance, I asked that the Confidentiality Agreement imposed by NIH on consulting scientists be printed in full because of its importance as an official document which reveals a great deal about the way NIH-HHS and some scientists function in official positions. It is not my responsibility to shorten this document drastically. Let Maddox take this responsibility as editor of Nature. In fact, he has taken the responsibility by shortening the document to the empty set, as far as readers of Nature are concerned. 

The 40 pages of enclosures accompanying my open letter to the NAS Section Chairs document an intricate and extensive web of failures of responsibility by top NIH and HHS officials. The enclosures included extensive primary sources besides the Confidentiality Agreement, for instance letters from NIH officials and from the NAS-nominated panel, as well as official NIH and HHS statements to the press. These letters and public statements document

inconsistent behavior of NIH and HHS officials at different times, and in particular, the way they go against their own public commitments. To do what I thought was a responsible job of summarizing the documentation coherently, instead of just charging NIH-HHS officials in generic terms, or asking to be taken on trust, I found that I needed all of my 10 pages. 

(c) It is Maddox's responsibility, not mine, to explain to Nature's readers why they have not been properly informed about the doings of NIH, HHS, and Healy, and to provide Natures readers with comprehensive documentation. Maddox can do so by an article of his own on the 'great deal of interesting material" which I put together. This material is not my personal property, and it is Maddox's responsibility as editor to extract whatever he wants from the primary sources and documentation which I put together and whatever other documentation is available to him. So far he has withheld this documentation from Natures readers. As a result, these readers lack information about NIH and HHS which would help them to understand the operations of those organizations. 

Maddox's letter to me reveals a great deal about the way he arrives at editorial decisions for one of the major science magazines in the world, and how information is withheld from Nature's readers. My experience is by no means isolated. I urge readers to read the exchange between Maddox and Neville Hodgkinson (the science editor of the London Sunday Times). This exchange is dealt with in my essay 'HIV and AIDS: Questions of scientific and journalistic responsibilities.' Readers will see how Maddox refused publication of material adverse to the established view on the HIV causality of AIDS.

IX. AN EXCHANGE WITH GALLO 

On 12 May 1992, Gallo called me on the phone. The conversation lasted about 10 to 15 minutes. Gallo did most of the talking. He accused me of writing without knowing the facts. I said practically nothing except that I awaited the NTH report being made public, and the Richards Panel Report being made public officially. I stated that I stood by what I wrote. I also said that I was about to leave within a couple of days for Europe where I had to give some lectures in various places. 

Around the middle of November, I received from Gallo a letter dated 5 November, and running as follows.

Gallo's Letter to Me 

Dear Dr. Lang: 

I have seen your recent letters to the Academy. Your continued references to me regarding matters about which you have no facts and certainly no understanding of, are deeply disturbing and shocking. 

You are wrong in your understanding of the events concerning our HIV research or you have been misled. What you have not perceived in any of your harangues is what I meant by the question 'are you crazy' and the comment "this is incredible,' which I marked in Popovic's first manuscript. Moreover, neither has Dr. Richards realized the context of these comments. You and Dr. Richards know none of the background, none of the reasons, none of the purposes of those remarks. An outline fragmentary explanation follows: 

(1) I had little idea of how much or long Popovic cultured LAV. Indeed, he always indicated to me it was very short term. 

(2) Indeed, LAV grew only with great difficulty. Another HIV (in 1991 identified as LAV) contaminated one of the French cultures 

in the summer of 1983. It is LAI that also contaminated a few of ours, and that was inadvertently grown. The true LAV could only be grown with great difficulty.