Fisking the DI’s “Study” on the Dover Ruling

Fisking the DI’s “Study” on the Dover Ruling December 13, 2006

You know, when the DI claimed to be funding super-secret research that they couldn’t tell us about, I knew that it couldn’t mean actual scientific research. But I didn’t realize what they were really funding were “studies” like this one, which purports to prove that Judge Jones….well, it doesn’t really say what it purports to prove. They compare one particular section of Jones’ ruling, the section on whether ID is science, to the plaintiffs’ Proposed Findings of Fact (PFOF) and claim (falsely, as I will show) that 90.9% of it was taken “from wording supplied by ACLU attorneys.”

Let’s start breaking down this laughable claim. First, as I’ve already noted, this is not at all unusual. Judges request such briefs be filed precisely so this can be done. Sometimes they will take an argument verbatim, sometimes they’ll paraphrase it; what matters is that they are deciding which side has the better argument, putting that argument in its proper place in the ruling and endorsing its validity. Curiously, the DI’s press release admits this:

Proposed “findings of fact” are prepared to assist judges in writing their opinions, and judges are certainly allowed to draw on them. Indeed, judges routinely invite lawyers to propose findings of fact in order to verify what the lawyers believe to be the key factual issues in the case. Thus, 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. For all practical purposes, Jones allowed ACLU attorneys to write nearly the entire section of his opinion analyzing whether intelligent design is science. As a result, this central part of Judge Jones’ ruling reflected essentially no original deliberative activity or independent examination of the record on Jones’ part. The revelation that Judge Jones in effect “dragged and dropped” large sections of the ACLU’s “Findings of Fact” into his opinion, errors and all, calls into serious question whether Jones exercised the kind of independent analysis that would make his “broad, stinging rebuke” of intelligent design appropriate.

But there are numerous problems with this argument. First, they never say what extent would be acceptable to them. They admit that it is normal procedure for judges to request such findings and to use the ones they find compelling, either verbatim or paraphrased slightly, in a ruling. So if that’s a perfectly acceptable procedure, and perfectly normal in judicial rulings (and it is, by their own admission), why does it suddenly become unacceptable and abnormal if it goes over some unspecified percentage of the text? They make no attempt to provide any such criteria.

Secondly, they rely upon a faulty analysis to come up with a fraudulent figure of 90.9%. Here’s how they say they came up with that number:

This percentage was calculated by using MS Word’s “Word Count” function to determine the word count for all of the sections of the Kitzmiller decision that were taken verbatim or nearly verbatim from the ACLU’s proposed “Findings of Fact and Conclusions of Law.” The resulting number (5,458) was then divided by the total number of words in the section on “Whether ID is science” (6,004; this number was also determined by MS Word’s “Word Count” function).

As Sandefur noted, the phrase “nearly verbatim” is meaningless; a phrase is either verbatim or it is not. And this becomes very important as you look at the chart they provide comparing phrases and what they consider “nearly verbatim.” They provide a table of quotes from the ruling compared to quotes from the PFOF, and apply a purely subjective standard – if it looks “nearly verbatim” to them, then it was – and then merely divided that by the number of words in that section of the ruling.

But if you look at many of the examples, they aren’t all that close at all. In many cases, what they pick out as “nearly verbatim” is the entire argument. But there are only so many ways to state an argument, and any of them would likely have triggered their subjective categorization. For instance, compare this statement from the ruling:

ID proponents primarily argue for design through negative arguments against evolution, as illustrated by Professor Behe’s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms.

With that in the PFOF:

Intelligent design proponents primarily argue for design through negative argument against evolution,
including Professor Behe’ s argument that “irreducibly complex” systems cannot be produced through Darwinian, or any natural, mechanisms.

Yes, they’re similar statements. But is there some way of phrasing this argument – which is incontrovertibly true, by the way – that would not be “nearly verbatim”? I can’t think of any. It’s an accurate statement of Behe’s argument and an accurate statement about the negative nature of ID arguments. Must the judge pull out a thesaurus and try to find a unique way to say it? Or should the judge state the argument as he did here, in the same simple and accurate manner that he did?

Let’s take another example. Here’s the text from the ruling:

ID is at bottom premised upon a false dichotomy, namely, that to the extent evolutionary theory is
discredited, ID is confirmed… We do not find this false dichotomy any more availing to justify ID today than it was to justify creation science two decades ago.

And here’s the text from the PFOF:

Intelligent design is premised on a false dichotomy, namely, that to the extent evolutionary theory is
discredited, intelligent design is confirmed….This argument is no more availing to justify intelligent design today than it was to justify creation science two decades ago.

Now let’s look at all of the obviously factual statements in both paragraphs:

1. ID is, in fact, premised on that false dichotomy.
2. The same false dichotomy was used to justify creation science
3. That justification was used in the controlling precedent for this case
4. That case was nearly two decades ago

So how many different ways are there to say it? Not many. They don’t dispute that any of it is true, of course; they couldn’t possibly. In light of that, their argument really collapses down to “the judge didn’t invent a whole new way of saying this; therefore”…well, again, they don’t really say. Somehow it “undermines” the validity of his ruling because he didn’t bother to invent entirely new ways of making admittedly accurate statements. Pretty silly, isn’t it?

They also claim that Judge Jones’ ruling copied “ACLU errors” from the PFOF. A brief look at some of those “errors” reveals that what their argument really means is that he didn’t buy the ID side’s arguments on various matters, and for good reason. For example, here’s a statement from the ruling, similar to a statement in the PFOF, that the DI says is an “error”:

In addition to failing to produce papers in peer-reviewed journals, ID also features no scientific research or testing.

And here’s why they say it’s an error:

Microbiologist Scott Minnich testified in court showing slides of the genetic knock-out experiments he performed in his own laboratory at the University of Idaho which found that the bacterial flagellum is irreducibly complex with respect to its complement of 35 genes. Judge Jones failed to mention any of Minnich’s experimental data supporting the irreducible complexity of the flagellum.

But this does not address Jones’ claim, because Minnich also admitted in his testimony that irreducible complexity was not a test of ID at all but was a test of evolution. He proposed a possible test of seeing if you could take a bacteria that had a portion of the flagellum known as the Type III Secretory System (TTSS) and see if he could get it to develop a flagellum. He admitted that neither he nor Behe had done it, and said that he might try it. This, he said, could be a means of testing and falsifying the concept of irreducible complexity.

Now, there are several major problems with this claim. First of all, if the experiment failed to produce a flagellum, it simply would not mean that flagella could not have developed naturally. Why? Because no experiment could replicate either the number of sequential trials that went on in nature (the number of bacteria in the world is staggeringly huge) or the amount of time it may have taken for the flagella to develop (bacteria, after all, have been on earth for nearly 4 billion years). You could do a 10 year experiment with a few billion bacteria and if they failed to develop a flagellum, that would say virtually nothing about how likely it is that one could develop given the vast amounts of genetic variation and time available in the real world.

Secondly, he is flat wrong when he says that if a flagellum did develop in such an experiment that it would falsify irreducible complexity. If one did develop, they would immediately make two arguments: A) that the experiment only proves that an intelligent force (in this case, the scientist doing the experiment) had to guide the process in order for a flagellum to develop; and B) that the information for the development of the flagellum may have been “front loaded” by God, so no wonder we can induce it to develop.

Lastly, Minnich even admits under cross examination that if such a test were performed, it would not be a test of either irreducible complexity or or intelligent design in general, but would only be a test of evolution. Thus, the DI’s argument simply does not show that Jones’ statement is in error. Even their hypothetical examples of what ID research might look like would not, in fact, provide positive evidence for ID at all but just more negative arguments against evolution (and even then, they would still make the excuses noted above for why it doesn’t really count. That’s the beauty of invoking an unnamed and undefined designer than did something at some point to make life possible; it simply cannot be falsified).

Here’s another example of an alleged error in the ruling:

ID is not supported by any peer-reviewed research, data or publications.

And here is their argument as to why it’s an error:

Expert witness Scott Minnich testified at trial that there were between “seven and ten” peer-reviewed papers supporting ID, and he discussed a pro-intelligent design article in the peer-reviewed biology journal, Proceedings of the Biological Society of Washington. Additional peerreviewed publications were listed in an
annotated bibliography submitted in an amicus brief accepted as part of the official court record by Judge Jones.

This objection amounts to “but we said otherwise and he didn’t believe us.” Well guess what? There’s a good reason why he didn’t believe you. Let’s look at what Minnich actually said about this peer-reviewed research:

I think yesterday there was, as I mentioned, there were around, between, I don’t know, seven and ten. I don’t have the specific ones. But Dr. Axe published one or two papers in the journal Biological Chemistry that were specifically addressing concepts within intelligent design. Mike Behe had one. Steve Meyer has had one.

Ah yes, the Axe papers, and Behe and Snoke paper. Yes, Minnich did mention them. Does that mean that those are indeed examples peer-reviewed research that supports ID? Not even close. In fact, those papers were discussed during the trial and completely debunked. The Axe papers in no way support intelligent design, nor do they claim to. In fact, Axe’s studies on perturbation rates in enzymes actually cuts against the notion of irreducible complexity because it shows that you have to knock out an immense number of amino acids in order to destroy all enzyme function.

The Behe and Snoke paper was discussed at great length when Behe was cross-examined during the trial. Not only was he forced to admit that this paper did not support ID, he had to admit that, in reality, it showed that a multi-residue binding site, by his own admission irreducibly complex, could evolve without intelligent intervention even if the parameters of the experiment were deliberately rigged to make it as unlikely as possible (see this post, with the full text of the cross-examination; this was an absolutely devestating indictment of what ID advocates consider pro-ID “research”).

The Meyer paper in the Proceedings of the Biological Society of Washington was nothing but a review of anti-evolution arguments. It contained no research whatsoever, nor did it even attempt to propose an ID explanation. It was nothing but a rehash of the same anti-evolution arguments we’ve been hearing for decades from creationists of every type. Its existence if utterly irrelevant to the statement the judge made in his ruling. Finally, we have the admission of Behe himself under cross examination that there was no actual research that had confirmed ID:

Q. And, in fact, there are no peer reviewed articles by anyone advocating for intelligent design supported by pertinent experiments or calculations which provide detailed rigorous accounts of how intelligent design of any biological system occurred, is that correct?

A. That is correct, yes.

So while the DI keeps repeating this false canard that there is actual research that confirms or supports ID by putting out lists and bibliographies, when you actually look at the papers they list you find out that they don’t support ID at all. Some, in fact, strongly argue against it, including research by their own advocates. And many of those papers were examined in detail under cross examination during the trial and shown not to support ID at all. Thus, the judge’s statement that there was no peer-reviewed research that supports ID is entirely validated by the facts in the trial record.

Here’s another example of an “error” that they claim Judge Jones simply took from the plaintiffs’ brief. On the issue of whether ID requires a supernatural designer, the ruling says:

ID is predicated on supernatural causation… ID takes a natural phenomenon and, instead of accepting or seeking a natural explanation, argues that the explanation is supernatural.

And here’s their argument for why this is an error:

Both Michael Behe and Scott Minnich testified otherwise at trial, and the court accepted an amicus brief providing detailed documentation of the view of intelligent design proponents that intelligent design is not predicated on supernatural causation.

This argument comes down to “But we said this wasn’t true! How can he say it is when we said it wasn’t?” Well, because the evidence, much of it from your own DI fellows, proves otherwise. The DI has been denying that the designer had to be supernatural, but their own definition of ID demands a designer who is outside of our universe because he/she/it had to create the universe. What else could that designer be called other than supernatural? We have statements on the record from, for example, William Dembski:

“The fine-tuning of the universe, about which cosmologists make such a to-do, is both complex and specified and readily yields design. So too, Michael Behe’s irreducibly complex biochemical systems readily yield design. The complexity-specification criterion demonstrates that design pervades cosmology and biology. Moreover, it is a transcendent design, not reducible to the physical world. Indeed, no intelligent agent who is strictly physical could have presided over the origin of the universe or the origin of life.”

If “transcendent” and “not reducible to the physical world” doesn’t mean “supernatural”, then that word has no meaning. Dembski has also stated that the standard ID argument that the “designer” might just be super-intelligent aliens is false because those aliens would also require a designer:

Intelligent design, as a scientific research program, attempts to determine whether certain features of the natural world exhibit signs of having been designed by an intelligence. Whether this intelligence is ET or a telic principle immanent in nature or a transcendent personal agent are all, at least initially, live options. The problem with ET, of course, is that it implies a regress — where did ET come from? The same question doesn’t apply, at least not in the same way, to telic principles or transcendent personal agents because the terms of the explanation are different. ET is an embodied intelligence, and that embodiment itself needs explanation.

We also have the fact that ID advocates rant endlessly about the need to overthrow “naturalism” and how ID is all about destroying naturalism. Well if ID is going to overthrow naturalism, it cannot possibly do so by positing a designer than is, itself, natural. The judge also cites the fact that Steve Fuller, a witness for the defense, said in his expert report that, “ID’s rejection of naturalism and commitment to supernaturalism does not make it unscientific.”

Furthermore, we have the clear statement in the very book that was used in Dover, Of Pandas and People, which was cited by Judge Jones:

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 distinctive features already intact – fish with fins and scales, birds with feathers, beaks, and wings, etc.

I don’t care how many times the IDers jump up and down and say that the designer doesn’t necessarily have to be supernatural, their own definitions, their own anti-naturalism rhetoric and their own previous statements incontrovertibly proves otherwise. There is one and only one reason why they continue to try and prop up this fiction that the designer could be natural, and that’s because they need that fiction to get around the notion that ID is an inherently religious idea. It’s a sham and a transparently obvious one at that.

Lastly, let’s note that the ID side also wrote their Proposed Findings of Fact briefs in the hope that the judge would agree with them and use them verbatim. That’s why they worded them as they did, in the voice of the court. For instance, their brief says, “As an initial matter, this Court finds that certain plaintiffs lack standing to advance a claim.” And that is how it words every legal conclusion, like this:

The Court finds that the Plaintiffs have failed to prove that the primary purpose of the curriculum change adopted by the DASD on October 18, 2004, was to advance religion.

Why is it worded that way? Because if the judge agrees with it, he can simply take that wording and use it in his ruling, or perhaps modify it just slightly. PFOFs are written in the voice of the court for precisely this reason. Do you suppose that if the ruling had gone the other way and Judge Jones had taken the above quote and used it in his ruling, we’d be hearing about how this undermines the validity of his ruling? I’d say the odds of that lay well beyond Dembski’s universal probability boundary.

This is nothng more than disingenuous special pleading by the DI. Despite the fact that they keep saying that the Dover ruling is no big deal for the ID movement, they are absolutely desperate to knock it down. They’ve spent the past year throwing every bit of muck and mud at it that they can find in the hope that some of it will stick. This latest attempt, frankly, is their most pathetic yet.

P.S. The best answer I’ve seen so far to this nonsense came from Vic Walczak, legal director for the Pennsylvania ACLU, in the York Daily Record:

An ACLU official calls the Institute’s report a stunt.

“They’re getting no traction in the scientific world so they’re trying to do something … as a PR stunt to get attention,” said Witold Walczak, legal director for the ACLU of Pennsylvania and the ACLU’s lead attorney on the case.

“That’s not how scientists work,” he said. “Discovery Institute is trying to litigate a year-old case in the media.”

Walczak said the Discovery Institute staff is not, as it claims, interested in finding scientific truths; it is more interested in a “cultural war,” pushing for intelligent design and publicly criticizing a judge.

“Why don’t these guys go back to their ‘labs,’ and do something meaningful?” Walczak asked. “Oh, wait. They don’t have labs. Silly me.”

Bingo. They don’t have any science. PR stunts are all they have to offer.

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