Part One

The Discovery Institute (DI) has published an article outlining the problems that they have with Judge Jones' decision in the Kitzmiller vs. Dover Intelligent Design (ID) trial. It's found here - go read that first, then come back.

Judge Jones' Decision Memorandum is found here. Read that too. It will take you much longer.

Read them? Good. I've read them too, and I find the DI's response to be a fairly typical defensive reaction from an organisation caught on the hop. In fact, I found it rather childish.

The Discovery Institute has now been forced to accept that ID policies in schools are unconstitutional, so they're lashing out at the judge who made that determination. The case provides a legal precedent for all future cases where an attempt is made to add ID to biology curricula, which undermines parts of phases 2 and 3 of the Wedge strategy (publicity & opinion-making, and cultural confrontation & renewal) - and we all know that phase 1 (scientific research, writing & publicity) is coming along swimmingly. The DI now knows it must pursue other means to meet their goals.

It uses a very ancient and traditional method - one that has a long and distinguished history: the ad hominem.

...in legal circles Judge Jones' use of the ACLU's proposed "Findings of Fact and Conclusions of Law" would not be considered "plagiarism" nor a violation of judicial ethics. Nonetheless, the extent to which Judge Jones simply copied the language submitted to him by the ACLU is stunning.

Source, pp.3-4.

Despite this statement, the purpose and effect (Lemon test) of the article is to imply that Judge Jones plagiarised the majority of his Decision Memorandum, in order to undermine public confidence in his decision. It is also consonant with the religious right's tendency to demonise the ACLU, lending weight to the theory that the DI is a religiously-motivated group, or at least has goals that are complementary to those of religiously-motivated groups.

While the DI's report makes much of the fact that Judge Jones used the ACLU's Proposed Findings of Fact for much of his decision memorandum, no mention is made of whether this is common practice. In fact, I suspect that 90.9% of judges do it. I'd wager that if you look through the ACLU's case history, it will turn out that they have written Proposed Findings of Fact for many cases in which they have been involved, and these will have been used in the decisions made by the relevant courts in a similar way.

I'm not a legal expert, and I'm especially not an expert in US case law (I'm a citizen of Australia). I don't even know for certain that what I have suggested in the paragraph above is actually true. But I suspect it to be true, and I would not be at all surprised if it is true. But if it turns out not to be, then I will certainly accept that.

Moving on. I'd like to focus on a single example of what the DI calls an "egregious factual error" in Judge Jones' memorandum. I focus on this one thing because I don't want to make this any longer than it has to be. This is by no means the only problem with the DI's article, but it is the one that I choose to focus on right now.

Judge Jones claimed that biochemist Michael Behe, when confronted with articles supposedly explaining the evolution of the immune system, replied that these articles were "not 'good enough.'" In reality, Behe said the exact opposite at trial: "it's not that they aren't good enough. It's simply that they are addressed to a different subject." The answer cited by Judge Jones came not from Behe, but from the ACLU's proposed "Findings of Fact," which misquoted Behe, twisting the substance of his answer.

Source, p. 3.

Let's have a look at a good example of "twisting the substance":

The actual Decision Memorandum reads as follows:

He was presented with fifty-eight peer-reviewed publications, nine books, and several immunology textbook chapters about the evolution of the immune system; however, he simply insisted that this was still not sufficient evidence of evolution, and that it was not "good enough."

Source, p. 78.

One point here is the fact that Behe didn't say that the articles were not good enough, the Judge said that Behe didn't consider the articles good enough. There's a difference, although the use of quote marks around "good enough" does imply a direct quote, which it is not.

Behe took great care in his cross-examination to define ID so narrowly that it pretty much lost all meaning. (For example, he was forced to admit that there were no more than three biochemical systems which were irreducibly complex - the bacterial flagellum, the blood clotting cascade and the immune system. Everything else was not irreducibly complex and had evolved by Darwinian processes.)

When he stated that the articles "addressed... a different subject", he was saying that none of the articles addressed an immune system directly observed in the process of being evolved, with a step-by-molecular-step description and analysis of the process. Since such a thing is logically and scientifically impossible, and he knows it, he and the DI must have felt that his argument was watertight. Unfortunately the Counsel for the Plaintiffs knew it too, and so did the ACLU and Judge Jones, which is why they decided that the articles were not "good enough" for Behe, even though he had stated otherwise. They saw through his ruse.

This is very clear when you read the transcript of Behe's cross-examination:

Q. ... Now, these articles rebut your assertion that scientific literature has no answers on the origin of the vertebrate immune system? A. No, they certainly do not. My answer, or my argument is that the literature has no detailed rigorous explanations for how complex biochemical systems could arise by a random mutation and natural selection and these articles do not address that. Q. So these are not good enough? A. They're wonderful articles. They're very interesting. They simply just don't address the question that I pose. ... Q. I think you said in your deposition you would need a step-by-step description? A. Where in my deposition did I say that? Q. Do you remember saying that? A. I probably said something like that, but I would like to see it. Q. Is that your position today that these articles aren't good enough, you need to see a step-by-step description? A. These articles are excellent articles I assume. However, they do not address the question that I am posing. So it's not that they aren't good enough. It's simply that they are addressed to a different subject. Q. And I'm correct when I asked you, you would need to see a step-by-step description of how the immune system, vertebrate immune system developed? A. Not only would I need a step-by-step, mutation by mutation analysis, I would also want to see relevant information such as what is the population size of the organism in which these mutations are occurring, what is the selective value for the mutation, are there any detrimental effects of the mutation, and many other such questions. Q. And you haven't undertaken to try and figure out those? A. I am not confident that the immune system arose through Darwinian processes, and so I do not think that such a study would be fruitful. Q. It would be a waste of time? A. It would not be fruitful.

Source, pp. 16, 18-19.

So although the articles and books presented by Rothschild in his now-famous "Perry Mason-like flourish" did address the evolution of the immune system (that much is clear from the titles alone), they were not "good enough" to satisfy Behe's demand for a "step-by-step, mutation by mutation analysis", let alone all of the other details he was asking for - a goal that he knows is impossible.

The DI makes much of the statement "they are addressed to a different subject" without taking note of what subject Behe wanted them to be addressed to! The implication is that the articles and books presented do not address the evolution of the immune system, when they actually do. They certainly do not provide the analysis that Behe was calling for, but whatever Behe was calling for is totally ignored in favour of the sound bite.

It is ironic that the DI is quote-mining their own side - a Fellow, in fact - in order to misrepresent what actually went on at the trial. The transcript makes it clear how much of the "substance" has been "twisted", and by whom.

There are more problems with the DI's article, such as the issue of the determination of whether ID is science or not. I've already gone on too long, so I'll just say that one of the stated purposes of the trial was to examine whether ID was science or not, so the DI's assertion that this was a "needless and inappropriate exercise of judicial power" is spurious. The Counsel for the Defense did not consider it needless or inappropriate, and spent considerable time and effort trying to establish that ID is science. They were unsuccessful.

Part Two

Let's have a look now at another item that the DI claims is an "egregious factual error".

Judge Jones insisted that ID "requires supernatural creation", that "ID is predicated on supernatural causation," and that "ID posits that animals... were created abruptly by a... supernatural, designer." He further claimed that "[d]efendants' own expert witnesses acknowledged this point." In fact, defendants' expert witnesses did nothing of the sort. This allegation was yet another erroneous finding copied by Judge Jones from the ACLU�s proposed "Findings of Fact." Contrary to the ACLU, ID proponents - including the defendants' expert witnesses at the Kitzmiller trial - have consistently explained that ID as a scientific theory does not require a supernatural designer. For example, when asked at trial "whether intelligent design requires the action of a supernatural creator," biochemist Scott Minnich replied, "It does not."

Source, p.3

He did indeed say that. But again we return to the context of the hearings. The book Of Pandas and People formed a major part of the trial, because it was adopted in the school as a reference book and students were specifially directed to seek it out. Let's see what this book says about supernatural causation:

"Darwinists object to the view of intelligent design because it does not give a natural cause explanation of how the various forms of life started in the first place. Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinct features already intact, fish with fins and scales, birds with feathers, beaks, and wings, etc.

Of Pandas and People, pp. 99-100

Check it out. Intelligent design does not give a natural cause explanation. Seems to me that if this is the case, then intelligent design must give a supernatural cause explanation, or none at all.

Expert witnesses such as Minnich and Behe did indeed say that they believed that ID did not require supernatural causation. What the DI fails to mention is that other expert witnesses, such as Ken Miller and Barbara Forrest, said that they believed that ID did require supernatural causation. This is why you have expert witnesses on both sides.

What's more, other non-expert witnesses indicated that they also believed that ID required non-natural causation. Wililam Buckingham, for example, testified that he believed in a literal reading of Genesis. He didn't know anything about intelligent design, but felt that ID was "not inconsistent" with his personal religious beliefs. Mr Buckingham, by the way, was about the most non-expert witness you could have had. He was one of those on the school board who pushed ID into the biology curriculum despite his testimony that he knew nothing about it ("I'm not an expert in intelligent design. I don't know anything about intelligent design". Source, p.9).

He was also one of those to whom Judge Jones was referring when he said "It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy" (Source, p.137).

The science teachers at the Dover school testified that they believed that ID was creationism (the Lemon test again) and that it required supernatural causation. The published statements from the American Association for the Advancement of Science, the National Academy of Science and the National Science Teachers Association which were entered into evidence stated that ID required supernatural causation.

What's more, the DI is quote-mining again. When the DI says "In fact, defendants' expert witnesses did nothing of the sort", it lies. What expert witnesses did not do was specifically say under oath "ID requires supernatural causation". But they did say something of the sort:

...ID posits that animals did not evolve naturally through evolutionary means but were created abruptly by a non-natural, or supernatural, designer. Defendants' own expert witnesses acknowledged this point. (21:96-100 (Behe); P-718 at 696, 700 ("implausible that the designer is a natural entity"); 28:21-22 (Fuller) ("...ID's rejection of naturalism and commitment to supernaturalism..."); 38:95-96 (Minnich) (ID does not exclude the possibility of a supernatural designer, including deities).

It is notable that defense experts' own mission, which mirrors that of the IDM itself, is to change the ground rules of science to allow supernatural causation of the natural world, which the Supreme Court in Edwards and the court in McLean correctly recognized as an inherently religious concept. Edwards, 482 U.S. at 591-92; McLean, 529 F. Supp. at 1267. First, defense expert Professor Fuller agreed that ID aspires to "change the ground rules" of science and lead defense expert Professor Behe admitted that his broadened definition of science, which encompasses ID, would also embrace astrology. (28:26 (Fuller); 21:37-42 (Behe)). Moreover, defense expert Professor Minnich acknowledged that for ID to be considered science, the ground rules of science have to be broadened to allow consideration of supernatural forces. (38:97 (Minnich)).

Source, pp.67-68

The DI chooses to ignore a paragraph and a half of explanatory text in order to make its point.

There was also discussion of the Wedge Document, which states that the "Governing Goals" of the Intelligent Design Movement included "defeat scientific materialism" and "replace materialistic explanations with the theistic understanding that nature and human beings are created by God" (Source, p.4).

So it was a reasonable conclusion based on the weight of evidence and testimony that ID does require supernatural causation, despite the fact that Minnich said at one point that he didn't believe that it did. It is notable that elsewhere in his testimony, Minnich said that ID "does not exclude the possibility of a supernatural designer", which does not contradict the first statement - but taken together they paint a very different picture from the one the DI paints when they supply only five words of his testimony.

Yet again, careful reading of the Decision Memorandum and the trial transcripts shows the extent of the Discovery Institute's machiavellian duplicity. Ordinary people are much more likely to read four pages (not counting the Executive Summary or the supplementary tables) of distortions and quote-mines than they are to read a hundred and thirty nine pages of the Decision Memorandum, let alone thousands of pages of transcript. It is unfortunate for the Discovery Institute that I have a really boring job.