RationalWiki:Kitzmiller v. Dover annotated transcript/P040

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THE COURT: And Mr. Rothchild, you may commence cross examination.

MR ROTHSCHILD: If I could have one moment to get organized, Your Honor?

THE COURT: Certainly.

(Pause.)

CROSS EXAMINATION

BY MR ROTHSCHILD:

Q. Good afternoon.

A. Good afternoon, Mr. Rothschild.

Q. How are you?

A. Fine, thanks.

Q. Professor Behe, do you have a copy of your deposition and expert report up there with you?

A. No, I don t.

Q. And I'm also going to give you a copy of what we ve marked as exhibit 718, which is your reply to critics which we'll be referring to throughout the afternoon.

A. Okay.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. And I saw that you had a copy of Pandas, but do you have a copy of Darwin's Black Box with you?

A. No, I don t.

Q. I am surprised you're ever without one.

A. Hard copy.

Q. I have the dog-eared paperback.

Professor Behe, there are many many peer-reviewed articles regarding the Big Bang theory, correct?

A. Yes.

Q. You commented on the newsletter, and I'm going to ask Matt to pull that up on our screen, it's exhibit 127. And if you would turn to the second page, which is where I would like you to be. And if you could highlight the first full paragraph under, What is the Theory of Intelligent Design. And it says in the last sentence, "Its principal argument is that certain features of the universe are best explained by intelligent cause rather than undirected causes, such as Darwin's theory of natural selection." Is that right?

A. Yes.

Q. But you told us earlier today that intelligent design has nothing to do with cause, correct?

A. No, that's not -- that's not correct. In this sense I mean that it began in -- at some point intelligence was involved in the production of the designed feature.

Q. Intelligence was the cause?

A. Intelligence is not the -- well, in order to produce something, one needs a number of different -- of different events. One needs not only intelligence, but then one needs a way to carry it out. For example, similarly, say with the Big Bang, we can see that the universe began in a large explosion, but we do not have a cause for it other than that.

Q. But here Dover is telling its community, intelligent design is about intelligent causes, correct?

A. Yes.

Q. Professor Behe, could you turn back to page 99 of Pandas.

MR ROTHSCHILD: And Matt, if you could highlight the text on 99 to 100 that we're all so familiar with.

BY MR ROTHSCHILD:

Q. And that's the text that says, "Intelligent design means that various forms of life began abruptly through an intelligent agency." Correct?

A. Yes.

Q. It talks about the life beginning abruptly, not just appearing abruptly, correct?

A. Well, that's certainly the word it used, but we can ask, how do we know it began abruptly? The only way that we know it began abruptly is through the fossil record.

Q. But beginning is different than appearances in the fossil record, correct, Professor Behe?

A. I don't take it to mean that way, no.

Q. Now, you said you wouldn't have described intelligent design this way, correct?

A. Yes.

Q. But that's how it's being described to the students at Dover who go to look at the Pandas textbook.

A. Well, that's one of the places, yes.

Q. And would you agree with me that if one substituted the word "creation" for "intelligent design" there, Creation 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, the statement would be equally apt?

A. Apt?

Q. Would make just as much sense as the sentence that's up there?

A. Well, I think the sentence as it is drafted is somewhat problematic, as I said in my direct testimony, so I would not say that either one was apt.

Q. That's not a good definition of creation or creationism?

A. I don't think so, no.

Q. Would it be a good definition of special creation, Professor Behe?

A. I don't think so either.

Q. You don't have a degree in education, do you?

A. No, I don t. I have a degree in biochemistry.

Q. And you have not taught at the primary or secondary level?

A. No, I haven t.

Q. And other than Pandas, you have not prepared a textbook for high school students other than Pandas?

A. That's correct.

Q. Before we leave Pandas, you said this was not a statement you would have signed off on, correct?

A. Yes.

Q. But you actually were a critical reviewer of Pandas, correct; that's what it says in the acknowledgments page of the book?

A. That's what it lists there, but that does not mean that I critically reviewed the whole book and commented on it in detail, yes.

Q. What did you review and comment on, Professor Behe?

A. I reviewed the literature concerning blood clotting, and worked with the editor on the section that became the blood clotting system. So I was principally responsible for that section.

Q. So you were reviewing your own work?

A. I was helping review or helping edit or helping write the section on blood clotting.

Q. Which was your own contribution?

A. That's -- yes, that's correct.

Q. That's not typically how the term "critical review" is used; would you agree with that?

A. Yeah, that's correct.

Q. So when the publishers of Pandas indicate that you were a critical reviewer of Pandas, that's somewhat misleading, isn't it?

MR. MUISE: Objection. Assumes that he understands what their purpose for listing him as a critical reviewer.

THE COURT: He just answered the question that that's not a critical review, so the objection is overruled. You can ask that question.

BY MR ROTHSCHILD:

Q. Advertising you as a critical reviewer of this book is misleading to the students, isn't it?

MR. MUISE: Objection, that's argumentative.

THE COURT: It's cross examination. It's appropriate cross. Overruled.

THE WITNESS: I'm sorry, could you repeat the question?

BY MR ROTHSCHILD:

Q. Telling the readers of Pandas that you were a critical reviewer of that book is misleading, isn't it?

A. I disagree. As I said, that's not the typical way that the term "critical reviewer" is used, but nonetheless, in my opinion I don't think it is misleading.

Q. Professor Behe, are you aware that a new edition of Pandas is being developed called, The Design of Life?

A. Yes.

Q. Are you an author of that book?

A. I am not an author of that book.

Q. Are you aware that William Dembski is one of the authors of that book?

A. Yes, I ve heard such, yes.

MR ROTHSCHILD: Matt, could you pull up exhibit 621. And that's the expert report of William Dembski that was submitted in this case before he withdrew as an expert. Could you go to page ten, and highlight the first paragraph Of Pandas and People.

BY MR ROTHSCHILD:

Q. And you see there he's discussing the new version Of Pandas and People, The Design of Life?

A. I'm sorry?

Q. Do you understand him to be describing his work on a new book called, The Design of Life?

A. Give me a chance to read this please.

Q. Absolutely.

(Pause.)

A. Yes.

Q. And Mr. Dembski, who is the author of Design of Life, described you as a co-author of the book, correct?

A. That's what he does, yes.

Q. That's false, isn't it?

A. Again, I am not an author of the book, but William Dembski, several years ago, asked if I would contribute. And I explained to him that I did not have the time to do so. And he says well, perhaps, you know, in the future he could solicit material from me and then I would be one of the authors of the book. So, that's correct.

Q. So that makes you a co-author right now, Professor Behe?

A. I certainly would not have listed myself now as a co-author, however, I think that he was anticipating my future participation in the project.

Q. So that's a true statement, Professor Behe, that you're a co-author?

A. It is not now a true statement but it might be in the future.

Q. Okay.

MR ROTHSCHILD: Matt, could you pull up the deposition of Jon Buell.

BY MR ROTHSCHILD:

Q. Professor Behe, you know who Jon Buell is, correct?

A. Yes, I do.

Q. He's the president of Foundation for Thought and Ethics?

A. Yes, that's right.

Q. And they were the publisher of Pandas when you participated?

A. That's correct.

Q. And you're familiar with who the Foundation for Thought and Ethics is?

A. Yes.

Q. And you're familiar with their mission?

A. I can't say that I'm familiar with the mission. I know Jon Buell, I ve spoken with him a number of times and met with him and participated in activities with him, yes.

Q. And this is a deposition that was taken in this case of Mr. Buell on July 8, 2005.

MR ROTHSCHILD: Matt, could you go to page 129, and highlight lines 11 to 13.

Make it easy on you, may I approach the witness?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. If you could turn to pages 129 -- to page 129 of the deposition.

A. Yes.

Q. And look at line 11. And Mr. Buell is asked, "Who are the authors of Design of Life as you understand it?"

And can you read his answer?

A. He says, "Kenyon, Davis, Dembski, Behe and Wells, Jonathan Wells."

Q. So Mr. Buell thinks you're an author too?

A. That's correct. I think he's working under the same impression as Bill, that he wanted to get together people who were most involved with the intelligent design movement to have a book which would be authored by them. And again, I told them that right now I was too busy. I told them that a couple years ago. But I said that perhaps in the future I could be involved.

Q. Mr. Behe, this statement is false, isn't it?

A. I'm sorry?

Q. The statement is false, isn't it?

A. What statement is that?

Q. The statement that you're an author, and Mr. Dembski's statement is false too, isn't it?

A. That's not what it says on the screen, sir. It says, "Who are the authors of Design of Life as you understand it?" And the way I read that is that he's seeing into the future and seeing when this actually will be published and anticipating that I will participate in the publication of the book at that point.

Q. Seeing into the future is one of the powers of the intelligent design movement?

A. I think --

MR. MUISE: Objection, argumentative.

MR ROTHSCHILD: I'll withdraw it, Your Honor.

BY MR ROTHSCHILD:

Q. Towards the end of your testimony today you said that it's good to teach students about intelligent design so that they can look at the facts from several theoretical perspectives, correct?

A. Yes, that's right.

Q. Now, in the case of germ theory, you're not aware that students are taught some other theoretical perspective so that they can understand the facts and not confuse germ theory with germ fact, correct?

A. That's correct.

Q. And not -- the same would be true for atomic theory, correct?

A. That's correct.

Q. The theory of plate tectonics?

A. But evolutionary theory is in many ways very much more involved than some of the other ones that you mentioned. In particular, as I tried to make clear in my testimony, it has a number of parts which are -- which are together, under an aggregate, considered Darwin's theory of evolution. But again, as I tried to make clear in my testimony, not all of them are as well supported as other parts of the theory.

So I think in this particular case, yes, it would make a great deal of sense for students to view the data from a number of theoretical perspectives.

Q. You're not an expert in germ theory, are you?

A. No.

Q. Or atomic theory?

A. I studied it but I wouldn't call myself an expert.

Q. Take germ theory, you don't really know the nature of the controversies around germ theory, do you?

A. I think the nature of the controversies around germ theory are pretty much past. I think it was controversial in the 19 Century, but I don't think there is a controversy in it in the present time.

Q. Okay. And you don't really know if a germ theory or atomic theory, where there are gaps or unexplained phenomena?

A. I don t, but I do know evolutionary theory, and I know there are gaps and unexplained problems in that.

Q. Probably true of all scientific theories, right, Professor Behe?

A. It might be true of -- yes, it's certainly true of many scientific theories.

Q. Now, you claim that intelligent design is a scientific theory.

A. Yes.

Q. But when you call it a scientific theory, you're not defining that term the same way that the National Academy of Sciences does.

A. Yes, that's correct.

Q. You don't always see eye to eye with the National Academy?

A. Sometimes not.

Q. And the definition by the National Academy, as I think you testified is, a well-substantiated explanation of some aspect of the natural world that can incorporate facts, laws, inferences and tested hypotheses, correct?

A. Yes.

Q. Using that definition, you agree intelligent design is not a scientific theory, correct?

A. Well, as I think I made clear in my deposition, I'm a little bit of two minds of that. I, in fact, do think that intelligent design is well substantiated for some of the reasons that I made clear during my testimony. But again, when you say well substantiated, sometimes a person would think that there must be a large number of people then who would agree with that. And so, frankly, I, like I said, I am of two minds of that.

Q. And actually you said at your deposition, I don't think intelligent design falls under this definition. Correct?

A. Yeah, and that's after I said -- if I may see where in my deposition that is? I'm sorry.

Q. It's on pages 134 and 135.

A. And where are you -- where are you reading from?

Q. I'll be happy to read the question and answer to you. I asked you whether intelligent design -- I asked actually on the top of 133, I asked you whether intelligent design qualifies as a scientific theory using the National Academy of Sciences definition.

A. What line is that, I'm sorry?

Q. That's 133, line 18.

A. Is that going -- question beginning, "Going back to the National Academy of Science?"

Q. Yes. And you first said, "I m going to say that I would argue that in fact it is." And that's 134, line ten.

A. Yes.

Q. Okay. And I said, "Intelligent design does meet that?" And you said, "It's well substantiated, yes." And I said, "Let's be clear here, I'm asking -- looking at the definition of a scientific theory in its entirety, is it your position that intelligent design is a scientific theory?" And you said, going down to line 23, "I think one can argue these a variety of ways. For purposes of an answer to the -- relatively brief answer to the question, I will say that I don't think it falls under this." And I asked you, "What about this definition; what is it in this definition that ID can't satisfy to be called a scientific theory under these terms?" And you answer, "Well, implicit in this definition it seems to me that there would be an agreed upon way to decide something was well substantiated. And although I do think that intelligent design is well substantiated, I think there's not -- I can't point to external -- an external community that would agree that it was well substantiated."

A. Yes.

Q. So for those reasons you said it's not -- doesn't meet the National Academy of Sciences definition.

A. I think this text makes clear what I just said a minute or two ago, that I'm of several minds on this question. I started off saying one thing and changing my mind and then I explicitly said, "I think one can argue these things a variety of ways. For purposes of a relatively brief answer to the question, I'll say this." But I think if I were going to give a more complete answer, I would go into a lot more issues about this.

So I disagree that that's what I said -- or that's what I intended to say.

Q. In any event, in your expert report, and in your testimony over the last two days, you used a looser definition of "theory," correct?

A. I think I used a broader definition, which is more reflective of how the word is actually used in the scientific community.

Q. But the way you define scientific theory, you said it's just based on your own experience; it's not a dictionary definition, it's not one issued by a scientific organization.

A. It is based on my experience of how the word is used in the scientific community.

Q. And as you said, your definition is a lot broader than the NAS definition?

A. That's right, intentionally broader to encompass the way that the word is used in the scientific community.

Q. Sweeps in a lot more propositions.

A. It recognizes that the word is used a lot more broadly than the National Academy of Sciences defined it.

Q. In fact, your definition of scientific theory is synonymous with hypothesis, correct?

A. Partly -- it can be synonymous with hypothesis, it can also include the National Academy's definition. But in fact, the scientific community uses the word "theory" in many times as synonymous with the word "hypothesis," other times it uses the word as a synonym for the definition reached by the National Academy, and at other times it uses it in other ways.

Q. But the way you are using it is synonymous with the definition of hypothesis?

A. No, I would disagree. It can be used to cover hypotheses, but it can also include ideas that are in fact well substantiated and so on. So while it does include ideas that are synonymous or in fact are hypotheses, it also includes stronger senses of that term.

Q. And using your definition, intelligent design is a scientific theory, correct?

A. Yes.

Q. Under that same definition astrology is a scientific theory under your definition, correct?

A. Under my definition, a scientific theory is a proposed explanation which focuses or points to physical, observable data and logical inferences. There are many things throughout the history of science which we now think to be incorrect which nonetheless would fit that -- which would fit that definition. Yes, astrology is in fact one, and so is the ether theory of the propagation of light, and many other -- many other theories as well.

Q. The ether theory of light has been discarded, correct?

A. That is correct.

Q. But you are clear, under your definition, the definition that sweeps in intelligent design, astrology is also a scientific theory, correct?

A. Yes, that's correct. And let me explain under my definition of the word "theory," it is -- a sense of the word "theory" does not include the theory being true, it means a proposition based on physical evidence to explain some facts by logical inferences. There have been many theories throughout the history of science which looked good at the time which further progress has shown to be incorrect. Nonetheless, we can't go back and say that because they were incorrect they were not theories. So many many things that we now realized to be incorrect, incorrect theories, are nonetheless theories.

Q. Has there ever been a time when astrology has been accepted as a correct or valid scientific theory, Professor Behe?

A. Well, I am not a historian of science. And certainly nobody -- well, not nobody, but certainly the educated community has not accepted astrology as a science for a long long time. But if you go back, you know, Middle Ages and before that, when people were struggling to describe the natural world, some people might indeed think that it is not a priori -- a priori ruled out that what we -- that motions in the earth could affect things on the earth, or motions in the sky could affect things on the earth.

Q. And just to be clear, why don't we pull up the definition of astrology from Merriam-Webster.

MR ROTHSCHILD: If you would highlight that.

BY MR ROTHSCHILD:

Q. And archaically it was astronomy; right, that's what it says there?

A. Yes.

Q. And now the term is used, "The divination of the supposed influences of the stars and planets on human affairs and terrestrial events by their positions and aspects."

That's the scientific theory of astrology?

A. That's what it says right there, but let me direct your attention to the archaic definition, because the archaic definition is the one which was in effect when astrology was actually thought to perhaps describe real events, at least by the educated community.

Astrology -- I think astronomy began in, and things like astrology, and the history of science is replete with ideas that we now think to be wrong headed, nonetheless giving way to better ways or more accurate ways of describing the world.

And simply because an idea is old, and simply because in our time we see it to be foolish, does not mean when it was being discussed as a live possibility, that it was not actually a real scientific theory.

Q. I didn't take your deposition in the 1500s, correct?

A. I'm sorry?

Q. I did not take your deposition in the 1500s, correct?

A. It seems like that.

Q. Okay. It seems like that since we started yesterday. But could you turn to page 132 of your deposition?

A. Yes.

Q. And if you could turn to the bottom of the page 132, to line 23.

A. I'm sorry, could you repeat that?

Q. Page 132, line 23.

A. Yes.

Q. And I asked you, "Is astrology a theory under that definition?" And you answered, "Is astrology? It could be, yes." Right?

A. That's correct.

Q. Not, it used to be, right?

A. Well, that's what I was thinking. I was thinking of astrology when it was first proposed. I'm not thinking of tarot cards and little mind readers and so on that you might see along the highway. I was thinking of it in its historical sense.

Q. I couldn't be a mind reader either.

A. I'm sorry?

Q. I couldn't be a mind reader either, correct?

A. Yes, yes, but I'm sure it would be useful.

Q. It would make this exchange go much more quickly.

THE COURT: You d have to include me, though.

BY MR ROTHSCHILD:

Q. Now, you gave examples of some theories that were discarded?

A. Yes.

Q. One was the ether theory?

A. Yes.

Q. And the other was the theory of geocentrism, right?

A. That's correct.

Q. And what you said yesterday was that there was some pretty compelling evidence for observers of that time that that was good theory, right?

A. Yes, sure.

Q. Look up in the sky, and it looked like the sun was going around us, correct?

A. That's right.

Q. And we know now that those appearances were deceiving, right?

A. That's correct.

Q. So what we thought we knew from just looking at the sky, that's not in fact what was happening, right?

A. That's right.

Q. So the theory was discarded?

A. That's correct.

Q. And intelligent design, also based on appearance, isn't it, Professor Behe?

A. All sciences is based on appearances. That's -- what else can one go with except on appearances? Appearances can be interpreted from a number of different frameworks, and you have to worry that the one that you're interpreting it from is going to turn out to be correct. But in fact since science is based on observation, now that's just another word for appearance. So intelligent design is science, and so intelligent design is based on observation; that is appearance.

Big Bang theory is based on observation, based on appearance, so yes, it is.

Q. The whole positive argument for intelligent design as you ve described it, Professor Behe, is look at this system, look at these parts, they appear designed, correct?

A. Well, I think I filled that out a little bit more. I said that intelligent design is perceived as the purposeful arrangement of parts, yes. So when we not only see different parts, but we also see that they are ordered to perform some function, yes, that is how we perceived design.

Q. Now, getting back to Pandas. You ve said this is a good book for students, correct?

A. Yes.

Q. And we know you wrote part of it, correct?

A. Yes.

Q. And you certainly vouch for that part of it?

A. I do.

Q. And we ve seen other parts of it that you're not as happy with, correct?

A. Right.

Q. Now, one thing you can't vouch for, however, is whether Pandas represents the fossil record correctly, can you?

A. No, I can t, I'm not a paleontologist.

Q. So, for example, when Dr. Padian testified on Friday that Pandas grossly misrepresents scientific knowledge on many issues including the evolution of birds, amphibians and various mammals in the fossil record about those animals, you have no way of responding to that, correct?

A. That's outside my expertise.

Q. Now, during the course of your testimony you referred to the writings of a number of scientists to make your case for intelligent design, correct?

A. Yes.

Q. You referred to Kirshner and Gearhart's article -- or book, I'm sorry?

A. That was not to make the case for intelligent design, that was to explain how scientific books fit into the scientific community.

Q. Very well. Dr. DeRosier's article, correct?

A. Yes.

Q. Bruce Albert's article?

A. That's correct.

Q. Richard Dawkins book, The Blind Watchmaker?

A. That's correct.

Q. Francis Crick, we heard a lot about him?

A. Yes.

Q. Jerry Coyne?

A. I'm not sure. Did I refer to him as support for intelligent design?

Q. You cited to his New Republic article on the issue of natural selection.

A. Yes. That wasn't quite the same thing. I was just trying to make the point that there is only one mechanism that is proposed to be able to mimic design.

Q. Franklin Harold, you cited him for support?

A. I cited him to show that in fact Darwinian explanations have not yet been advanced for the complex molecular systems that have been discovered by science.

Q. That's part of the argument for intelligent design, isn't it?

A. That's a part of the argument to show that there is no other plausible explanation for what we perceive to be as design.

Q. Which is part of the argument for intelligent design, correct?

A. Yes.

Q. And there actually was an article by Jerry Coyne in Nature you relied on?

A. Yes, it was a review of my book; is that what you're thinking of?

Q. That's right.

A. Okay, yes.

Q. And Andrew Pomiankowski?

A. Yes.

Q. Now, none of these scientists that you referred to advocate for intelligent design in those articles or books, do they?

A. No, they don t.

Q. Or in any other forum, correct?

A. That's correct.

Q. In fact, many of them are vocal opponents of intelligent design?

A. Yes, indeed, just like, say, John Maddox is an opponent of the Big Bang theory and, for example, Walter Nernst was an opponent of the Big Bang theory and a vocal proponent of the infinity of the universe; yes, that's correct.

Q. Professor Behe, I can't control your answers, but we're in biology class here, not physics, so let's talk about intelligent design.

A. Okay, I think these are relevant to an understanding of what I'm trying to do.

Q. So in any event, all of the scientists that I named that you referred to during the course of your testimony over the past two days are certainly not supporters of intelligent design, most of them are pretty active opponents of it, correct?

A. That's correct.

Q. And it's not just Ken Miller?

A. No, there are many scientists, yes.

Q. There certainly are, in fact, almost all the major scientific organizations that have taken a position on intelligent design have opposed it, isn't that right?

A. Yes, a lot of scientific organizations have issued statements opposing intelligent design.

Q. And, you know, you discussed yesterday that you ve attended many seminars, made presentations to various scientific departments and the like, correct?

A. That's correct.

Q. So over the past nine, ten years since Darwin's Black Box, you ve certainly gotten a hearing in the scientific community, correct?

A. I -- I'm sorry, what do you mean by "hearing?"

Q. Scientists have heard you out, heard your arguments, correct?

A. A number of scientists have, certainly. I ve presented perhaps maybe 20, 30 seminars. I would present seminars pretty much to whoever would invite me. But even 20 or 30 seminars times 100 people per seminar or so on average, that's still a fairly small fraction of the scientific community.

Q. Not nearly as big as, for example, the scientific societies you belong to.

A. That's correct.

Q. And you actually have also made numerous presentations on intelligent design in your book to churches and religious groups, correct?

A. Yes, I try to speak to whoever invites me.

Q. You mentioned that there have been many scientific organizations who have taken a position, one of those is the National Academy of Sciences, correct?

A. Yes, that's correct.

Q. And you testified yesterday that's the most prestigious scientific organization in the United States?

A. That's correct.

MR ROTHSCHILD: Matt, could you pull up exhibit 192.

BY MR ROTHSCHILD:

Q. Go to page 20. That's the publication, Science and Creationism, A View from the National Academy of Sciences.

A. That's correct.

MR ROTHSCHILD: And if you could go to page 25, please, and highlight the third paragraph, first sentence.

BY MR ROTHSCHILD:

Q. And it says, "Creationism, intelligent design, and other claims of supernatural intervention in the origin of life or of species are not science because they are not testable by the methods of science." That's the National Academy's position?

A. That's correct, that's exactly the position that I argued against in my article in Biology and Philosophy. I disagree with it, as a matter of fact I think it's the inverse of what is true. I think that in fact Darwinian theory is very difficult to falsify, but that intelligent design is easily falsify -- or easy to falsify.

Q. And I do have some more questions to ask you about that, but before we do that let's go to page 21 of this exhibit. And if you could go to the bottom paragraph, first sentence. It says, "Molecular evolutionary data counter a recent proposition called intelligent design theory. Proponents of this idea argue that structural complexity is proof of the direct hand of God in specially creating organisms as they are today."

More rebuttal to intelligent design, correct?

A. I -- I think that particular sentence is just a wonderful illustration of the massive misunderstanding and mischaracterization of intelligent design. They -- they have this sentence, "Proponents of this idea argue that structural complexity is proof of the direct hand of God in specially creating organisms as they are today." I advocate none of those ideas. None of those ideas are found in my books. None of those ideas are found in my writings. I take this to be a political statement unsupported by any references.

If you look in that publication, you do not find any references to anybody in the intelligent design movement. In a number of sections here they certainly seem to have my ideas in mind, and they do not reference my book, they do not quote my book. In their list of readings for teachers, for teachers to understand this controversy, they do not even list a single book by an intelligent design proponent. How is a teacher supposed to understand this if they can't even read, you know, proponents of a theory making their own case in their own way, and they have to rely on mischaracterizations?

Q. So you don't think that accurately characterizes your work?

A. No.

Q. You're not -- you're not all of intelligent design, are you?

A. That's correct, yes.

Q. Characterize some other intelligent design proponents writings?

A. I disagree, no.

MR ROTHSCHILD: And, Matt, if you could go to page 28 of the report, and highlight the paragraph, "Don't many famous scientists reject evolution."

BY MR ROTHSCHILD:

Q. It says there, "The scientific consensus around evolution is overwhelming." And then it says, "Those opposed to the teaching of evolution sometimes use quotations from prominent scientists out of context to claim that scientists do not support evolution."

Do you agree that that's a problem, Professor Behe?

A. Well, I have a couple things to say about that, those sentences that you just read. First of all, this is another wonderful illustration of the confusion of the different senses of the word "evolution."

"The scientific consensus around evolution is overwhelming." What is evolution? Is it Darwin's mechanism of random mutation and natural selection? Do they cite any writings by, say, Stuart Kauffman or the complexity theorists who object to that? I don't see anything there.

This is really -- well, let me just go on to the next statement.

And it's clear, I think, that many people have written on the question of evolution for it and against it. And if you look at those broad writings, I'm sure you'll find things that might take quotes out of context. But reading this here right now, the phrase that comes to mind to me is the pot calling the kettle black. We just looked at a quotation from that same book in which the National Academy characterized intelligent design in a way that I would consider utterly misleading.

Q. Mischaracterizes you?

A. It mischaracterizes intelligent design and certainly me and, like I said -- I hope I'm not being, you know, self centered here, but I think they had me in mind in a couple of these sections.

And they don't even list a reference. You know, talk about scholarly malfeasance or some such thing, they don't even reference -- and even these quotations, where are the quotations? Suppose a teacher wanted to show her students an example of these quotations. Where would she find them? The National Academy doesn't say; it just asserts. This is one long assertion.

Q. Why don't we go onto the next long assertion from the American Academy of Scientists -- American Association of Scientists. And you're familiar with this resolution?

A. Yes, I ve seen it.

Q. Okay. And this is from the largest scientific organization in the United States, correct?

A. That is correct, yes.

Q. And there goes the whole outline, we can stop now. And that statement also condemns the teaching of intelligent design, doesn't it?

A. I can't read it. Could you blow up the section?

MR ROTHSCHILD: Could you highlight the whereas clauses?

THE WITNESS: I'm sorry, could you blow up the next paragraph or the next two paragraphs? Thank you.

BY MR ROTHSCHILD:

Q. And in the second whereas clause it says, "The ID movement has failed to offer credible scientific evidence to support their claim that ID undermines the current scientifically accepted theory of evolution." And "The ID movement has not proposed a scientific means of testing its claims. Therefore be it resolved, that the lack of scientific warrant for so-called intelligent design theory makes it improper to include as a part of science education."

That's the association's position, correct?

A. That's what it says. And if I might comment, this is a political document. What scientific paper do you know of that says whereas, whereas, whereas, therefore be it resolved? This is a political document. There are no citations here. There's no marshaling of evidence. As I ve tried to show in my testimony yesterday and today, if you actually look at these things, we have marshaled evidence, we have proposed means by way our claims can be tested.

Like I said in my testimony earlier, not every statement by a scientist is a scientific statement. And that goes also for scientific organizations, not every statement issued by a scientific organization, even on science, is a scientific statement.

This is not supported by evidence. This is not worth one paper in the literature. This is a political document.

Q. In any event, in the ten or 15 or 20 years, or if we go to Paley more than 200 years, intelligent design has failed to make its case to the scientific community, correct?

A. I disagree. You're going into very, very big problems in the history of science, and one can't settle those in one-sentence answers or one-sentence questions. In the time of Paley, which you referred back to, a lot of people thought there was evidence for intelligent design, one of them was the young Charles Darwin, who remarked a number of times about his enjoyment of Paley's book. Since Darwin's theory was proposed as an explanation for apparent design, many people in the scientific community changed their minds and said, well, perhaps we have an explanation for this strong appearance of design. But science marches on and we have new data these days. And it's -- and observing the new data, we can ask again, is Darwin's explanation, does it continue to be a good explanation for this. And I think we can -- we can again reopen this question and ask -- ask whether -- ask whether it's a good explanation.

Q. Ask the question, but you haven't convinced the contemporary science community that your idea has any merit, correct?

A. If you look at these political statements issued by the American Association for the Advancement of Science, if you look at such statements in booklets issued by the National Academy, they are certainly very hostile to the idea of intelligent design. But it's been my experience that a number of people are interested in the idea. Nonetheless, it's the nature of bureaucracy, I think, to issue statements like this. So I do not consider these representative of the scientific community.

Q. You're not aware of any major scientific organization that has endorsed the science of intelligent design or the teaching of intelligent design, are you?

A. I'm unaware of any major scientific organization that goes into the business of endorsing scientific theories. When they get stirred up apparently they will oppose something. But, you know, no other scientific theory, you know, after a while is put on a list of the approved -- of approved sciences by any scientific organization that I'm aware of.

Q. In fact, this isn't just a big scientific organization's bureaucracy that's taken this position, your own university department has taken a position about intelligent design, hasn't it?

A. Yes, they certainly have.

MR ROTHSCHILD: If you could pull up exhibit 742, Matt, and if you could highlight it.

BY MR ROTHSCHILD:

Q. This is a statement that was issued by the Lehigh Department of Biological Sciences?

A. Yes, it is.

Q. And what it says is, "The faculty in the Department of Biological Sciences is committed to the highest standards of scientific integrity and academic function. This commitment carries with it unwavering support for academic freedom and the free exchange of ideas. It also demands the utmost respect for the scientific method, integrity in the conduct of research, and the recognition that the validity of any scientific model comes only as a result of rational hypothesis testing, sound experimentation, and findings that can be replicated by others.

"The department faculty, then, are unequivocal in their support of evolutionary theory, that has its roots in the seminal work of Charles Darwin and has been supported by findings accumulated over 140 years. The sole dissenter from this position" -- and I think they're just referring to your department at this point -- "Professor Michael Behe, is a well-known proponent of intelligent design. While we respect Professor Behe's right to express his views, they are his alone and are in no way endorsed by the department. It is our collective position that intelligent design has no basis in science, has not been tested experimentally, and should not be regarded as scientific."

So you ve not even been able to convince your colleagues, any of them, Professor Behe?

A. They all endorse this statement, but I would like to point out, if you would, the entire first paragraph is something that I would completely agree with: Committed to the highest standards of scientific integrity and academic function; unwavering support for academic freedom; the utmost respect for the scientific method; integrity in the conduct of research, and so on.

That's a wonderful statement. I agree with it completely. What does it have to do with the arguments that I make?

The department faculty is unequivocal in their support of evolutionary theory. What does that mean? To commit one's self to a theory, to swear allegiance to a theory. That's not scientific.

If they could point to a paper in the literature, something that, say, Russell Doolittle overlooked which explains how complex molecular systems could be put together by gradual means, by unintelligent means, then I would be happy to agree that Darwinian evolution could explain this. But one can't issue statements and say that a theory is correct if one does not have the papers to back it up.

And you'll notice that even in this statement, you see no citations, no citations to explanations for these complex molecular systems. And in the absence of that, while that's fine for them to express their views, it doesn't mean -- it doesn't carry the weight of a single journal paper.

Q. Journal papers are valuable.

A. They sure are.

Q. And they're just referring to the findings accumulated over 140 years, correct?

A. Well, as I tried to make clear in my testimony, findings accumulated over 140 years that support the contention that Darwinian processes could explain complex molecular systems total a number of zero.

And so they -- this is another example of confusing the various aspects of evolutionary theory. It's a very difficult problem, which is why I think students should have it clearly explained to them that evolution is a complex idea, and support for change over time, or support for common descent does not run into supporting natural selection and random mutation.

Q. Zero papers, Professor Behe?

A. That's correct.

Q. Let's turn to your understanding of intelligent design.

MR ROTHSCHILD: And, Matt, if you could return to -- or actually pull up Professor Behe's expert report please.

And that's --

THE COURT: Mr. Rothchild, we'll go about five more minutes.

MR ROTHSCHILD: This would actually be a great time for a break.

THE COURT: Why don't we do that. Let's recess here for about 20 minutes, and we'll return and we'll pick up the new line of cross examination after that. We'll be in recess.

THE DEPUTY CLERK: All rise.

(Whereupon, a recess was taken from 2:40 p.m. to 3:00 p.m.)

THE COURT: Back to Mr. Rothschild on cross examination.

BY MR ROTHSCHILD:

Q. Professor Behe, right before the break you said that the findings accumulated over 140 years that support the contention that Darwinian processes could explain complex molecular systems total a number of zero, correct?

A. I'll -- I think I did, yes.

Q. Okay. And that's a proposition you stand by.

A. Well, again, you have to look at the papers. And what I meant by that is ones which fully explain how random mutation and natural selection could build a complex system; yes, there are no such explanations.

Q. Zero papers.

A. I don't think I said zero papers, perhaps I did, but there are zero explanations.

Q. And zero is the same number of articles in peer-reviewed scientific journals that argue for the intelligent design of complex molecular systems?

A. The number of peer-reviewed papers in scientific journals which show that life is composed of molecular machinery that exhibits the purposeful arrangement of parts in detail on term, you know, many many many thousands. There are -- I think there are just one or two that mention intelligent design by name.

Q. That argue for the intelligent design of complex molecular systems in peer-reviewed scientific journals?

A. No, I don't think -- now that you mention it, I think that I was thinking of something else.

Q. And there are zero articles in peer-reviewed scientific journals arguing for the irreducible complexity of complex molecular systems?

A. There are none that use that phrase, but as I indicated in my direct testimony, that I regard my paper with Professor David Snoke as to be arguing for the irreducible complexity of things such as complex protein binding sites.

Q. So one, according to your count?

A. Could you repeat the question, I am afraid --

Q. I asked you, is it correct that there are zero articles in peer-reviewed scientific journals arguing for the irreducible complexity of complex molecular systems?

A. I would count some other papers as, as impinging on that, on that topic, but I don't -- they certainly don't use the term irreducible complexity.

MR ROTHSCHILD: Matt, could you pull up Professor Behe's expert report, exhibit 602, and go to pages nine and ten and highlight the five claims identified by Ernst Mayr.

BY MR ROTHSCHILD:

Q. This is something you discussed in your direct testimony?

A. Yes, it looks like.

Q. These are the five claims for evolution identified by Ernst Mayr?

A. That's right, evolution as such, common descent, multiplication of species, gradualism and natural selection.

Q. If we could go to page 11 of your report and highlight the underscored text.

You say, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." Correct?

A. That is correct, yes.

Q. That's consistent with your testimony today.

A. Yes, it is.

Q. Now, the claim that -- if we could go back to Ernst Mayr's list and highlight -- just focus on the common descent. You claim that intelligent design does not take a position on common descent, which is defined here as, "The theory that every group of organisms descended from a common ancestor and that all groups of organisms, including animals, plants, and microorganisms, ultimately go back to a single origin of life on earth." Correct?

A. I'm sorry, I lost track of the question. What was the question?

Q. That's how common descent is described here, correct?

A. Yes, this is Ernst Mayr's definition of common descent, may I add.

Q. And you're saying intelligent design doesn't make a claim about that proposition.

A. That's correct.

Q. Now, if one were to argue for special creation of humans, that would be inconsistent with that proposition, correct?

A. I'm afraid I don't have a real good understanding of what you mean by the term "special creation."

Q. Do you have an understanding -- you used the term "special creation" in response to Mr. Muise's question. When you answered those questions, what did you understand "special creation" to mean?

A. Well, from that I meant the -- I understood the ex nihilo, that is creation appearance from absolutely nothing of some organism.

Q. So if that kind of creation occurred -- if one was arguing for special creation of humans, that would be inconsistent with the proposition of common descent described up there?

A. If one were arguing for the ex nihilo creation of humans, that would be inconsistent with common descent.

Q. And when you say ex nihilo, you're using that synonymously with special creation?

A. That's the way I understand the term.

Q. Okay. And then Dr. Mayr also has the claim of gradualism, which says, "According to this theory, evolutionary change takes place through the gradual change of populations and not by the sudden, saltational, production of new individuals that represent a new type."

And it's your testimony that intelligent design does not properly make a claim about that proposition in the theory of evolution?

A. That's correct. It could either -- it could be consistent with a gradualistic or a nongradualistic fossil -- or nongradualistic history of life. It is not a claim that impinges on intelligent design, although it may in fact impinge on theories that purport to explain life without intelligence.

Q. Let's go back to Pandas. If you could open up the book and go to page 98. This is just to prove we're not completely wed to pages 99 to 100, though we may return to them.

If you could go down to the first column on page 98, under the heading "Sudden Appearance or Face Value Interpretation," it states: "The fossil record shows that most organisms remain essentially unchanged. The conclusion to be drawn is that major groups of plants and animals have co-existed on the earth independent of each other in their origins, which must be explained in some way other than Darwinian evolution."

Independent of each other in their origins, that is the opposite of going back to a single origin of life on earth, isn't it?

A. That is -- in my view, that's an attempt to simply explain what we see in the fossil record, which I understand from the quotations that were read to me by Mr. Muise, that some well-known paleontologists have essentially agreed with, to my thinking. Also --

Q. Sorry.

A. I'm sorry. But so it -- so it seems to me that the text here is trying to draw a conclusion that is more consistent with the actual fossil record that -- well, the record that they perceive to be the fossil record, without imposing a theoretical construct on top of it.

Q. It's drawing a conclusion from the fossil record, isn't it, Professor Behe, it's not just describing the fossil record?

A. That's right, it says conclusion to be drawn, yes.

Q. And the conclusion is, separate origins of plants and animals, various types -- groups of plants and animals, correct?

A. Yes. But if I might point out, this is in a section of the book entitled "Meaning of Gaps in the Fossil Record," which actually begins on page 96, which I discussed in my direct testimony. And this is one of a number of different interpretations which attempt to explain what is described as a noncontinuous or apparently noncontinuous record. The first one is that there is an imperfect record, that is, we haven't got all the fossils, or all the fossils didn't fossilize -- or all organisms didn't fossilize. The second that Pandas mentions is incomplete search. The thirds that it mentions is jerky process, which is an inartful way of saying punctuated equillibrium. And the fourth one is the -- is the -- is what they're concluding that in fact the fossil record may indicate that these organisms did appear as they are.

Q. And that last interpretation is inconsistent with the description of common descent in Ernst Mayr's description, correct?

A. Yes, that's right.

Q. And it's called the Face Value Interpretation, correct?

A. That's correct. And let me just repeat just for context, that Pandas says -- if I could find the data that -- or the description, and I can't find it right here -- they say that scientists should not accept the face value interpretation of the fossil record, without also exploring the other possibilities, and even then only if the evidence continues to support it.

So the way I read the textbook is that they're trying to tell students that this seems to be what the record shows, and we should look for other explanations, and we might draw this conclusion tentatively, but our tentative conclusion is always subject to revision if new data comes out.

Q. Okay. Let's go on in the page that I pointed you to, page 98. Go to the second column, and the second full paragraph. And it says, "The intelligent design hypothesis is in agreement with the face value interpretation and accepts the gaps as a generally true reflection of biology and natural history."

Nothing tentative about that, is there, Professor Behe?

A. No, I think it's quite tentative in the context of what I just read. It says the intelligent design hypothesis is in agreement with. The way I'm reading it is that it is not in conflict with the face value interpretation because intelligent design doesn't speak to common descent. It only says that we can detect design in some physical features of life. So it does not conflict with intelligent design -- to the intelligent design hypothesis, as it might with one of the tenants of Darwin s theory as written by Ernst Mayr, gradualism, and perhaps common descent as well.

So the way I see that is in fact they're saying, well, there is no conflict between intelligent design and the face value -- or the face value interpretation.

Q. It doesn't say no conflict, does it, Professor Behe, it says in agreement?

A. That's correct. But in agreement can mean that -- can mean no conflict. It means that there is no reason to rule out intelligent design because of this aspect of the fossil record, although other theories might have difficulty with it.

Q. It doesn't say intelligent design is also in agreement with the jerky process or punctuated equilibrium as you describe it, does it?

A. I would have to read those sections again more closely.

Q. Take a minute.

A. Well, from scanning them it does not look like it says that. But I do not draw any grand conclusions from that. I would just say that, you know, this is a correct statement that the intelligent design hypothesis is in agreement with the face value interpretation.

I would also add that it's in agreement with all of the other -- all of the other topics listed under this section as well.

Q. That's your interpretation.

A. Yes, it is.

Q. Okay. Now having critically reviewed the book?

A. No, that was my understanding from, from the beginning.

Q. Let's go back a little further. Let's go down a little further in that paragraph. It says, "A growing number of scientists who study the fossil record are concluding that the structural differences between the major types of organisms reflect life as it was for that era.

"This view proposes that only the long-held expectations of Darwinian theory cause us to refer to the inbetween areas as gaps. If this is so, the major different groups of living organisms do not have a common ancestry. Such a conclusion is more consistent with currently known fossil data than any of the evolutionary models."

It's taking a side, isn't it, Professor Behe? It's taking a side for the face value interpretation.

A. It certainly is not. I mean, it's certainly proposing something that a student normally doesn't read about in their biology textbook. But it says that this is what the data is consistent with, and it's -- in their opinion it's more consistent with this data than with other -- I'm sorry, with this model than with other models.

And earlier, or perhaps later, I've lost the page, it advises students that we should hold our views tentatively, and if new data turn up which cause -- should cause us to revise our estimation of our views, then we should do so. So I see no inconsistency between this -- I do not see this as advocating, I see it as a description.

Q. Professor Behe, you described earlier you have nine children?

A. I do, yes.

Q. Some of them have been through the ninth grade?

A. Five boys, four girls.

Q. Congratulations.

A. Thank you.

Q. Some of them have been through the ninth grade, I'm assuming?

A. Yes, they have.

Q. Okay. Honestly, any ninth grader reading this is going to understand this book to be taking the position that common ancestry, common descent is wrong, isn't that right?

A. I -- well, I disagree. I do not think so.

I think they are careful to present the ordinary interpretation, or the common interpretation. They're careful to say that is the common interpretation. They're careful to say that there are multiple -- multiple explanations for the data within the common interpretation. Then they say that, well, there's this other interpretation that may be consistent with the data too; we should only hold this interpretation if it continues to be consistent with the data.

I think a ninth grader reading this would say to themselves, wow, you know, look at the different ways we can look at the data. Huh, let's decide what the data is and what our interpretation is.

I do not view this as, as something that would cause a ninth grader to jump up and say ah-hah, there must not have been common descent. I view it as something that would cause a ninth grader to sit down and say, let's think about this data, let's see if we can really -- if our views are as strongly supported as we thought.

Q. Well, let's go back to page 99 and 100. Okay?

"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."

That's the definitional statement in this section of the book. That's not consistent with common ancestry, it's directly opposed to it, isn't it, Professor Behe?

A. Well, as I tried to make clear in my direct testimony, I don't think this was well written. I think it's tentatively phrased. It says "some scientists," and certainly I do not think that that is a definition of intelligent design.

And what I see this paragraph trying to say is that we see these things in the fossil record as some eminent paleontologists apparently agreed, and that if we hold this view, this face value view, then we do not have to necessarily come up with some strained explanation, or some explanation which seems ad hoc, perhaps that's the way it happened, because intelligent design can accommodate a fossil record like this.

Q. And the way it happened is inconsistent with common ancestry, birds, fish, separate, right?

A. Give me a second to read this, please.

No, I disagree. It just means abruptly as seen in the fossil record. Even if one thinks it were through intelligent agency, that -- that event might have been through common descent, through some ancestors in the past giving rise to these things, but that it happened so rapidly that it did not leave traces in the fossil record.

And might I add that that is oftentimes an interpretation given to the fossil record by paleontologists, such as, say, Stephen Jay Gould and Niles Eldredge. They said that apparently, and if you look at the fossil record -- from my nonexpert understanding -- that the theory of -- punctuated equillibrium says that things change and then suddenly -- or things stay the same and then suddenly change. And so that in the fossil record you just see rather large changes. But they certainly do not disagree with common ancestry, and I don't think this is arguing for it either.

Q. Professor Behe, it's one thing to say fossils appeared abruptly, it's another to say life began abruptly, isn't it?

A. I disagree. In the context of this book, when it's talking about fossils, when it's talking about the fossil record, when it's talking about all the problems that one has in getting fossils, that fossils -- if I can find the correct page -- that there might be an imperfect record due to the fact that fossils form imperfectly, that there might be incomplete search and so on, that this conveys to me, and I think to any -- any ninth grader reading it, that this is the data we have from the fossil records. So that when we say these things began in the fossil -- abruptly, that means that we perceive them to begin in the fossil record.

Q. That's a pretty charitable interpretation, Professor Behe, but let me ask you this question. Abrupt appearance, you would agree with me that's inconsistent with gradual? Gradual and abrupt, you're not going to tell me those are the same?

A. That's correct. But I d like to say that a number of scientists, in my understanding, challenge the gradual evolution and the gradual tenant of Darwin's theory. One person is a lady named Lynn Margulis, who is a professor of biology at the University of Massachusetts-Amherst, and a member in the National Academy of Sciences. Let me just briefly explain to make this point. I don't intend to take much time.

She proposed that things that we call mitochondria, which occur in eukaryotic cells, which are cells with nucleus, which include us and everything except bacteria, they occurred when a pre-eukaryotic cell essentially enveloped a smaller bacterium, and the two essentially developed a symbiotic relationship.

And her view of this, and other people's view of it, is that this is in fact a saltational event; nongradual development of an entirely new life form. So gradualism is not the -- or abruptness is not the opposite of common descent, and -- well, it's not the opposite of common descent.

Q. Lynn Margulis is not being taught at Dover, but intelligent design is, and it's your assertion that intelligent design makes no claim about gradualism, but this passage we ve read here, it's completely inconsistent with the concept of gradualism. Abrupt appearance or -- life beginning abruptly.

A. Can I see where -- could you read the --

MR. MUISE: Objection, the question mischaracterized the evidence. He says intelligent design is being taught in the class. And I don't believe there's any evidence that that is the case.

MR ROTHSCHILD: I think that's an issue of dispute.

THE COURT: Restate your objection.

MR. MUISE: I believe he prefaced his question that intelligent design is being taught at the Dover -- in the Dover schools, and I don't believe there's evidence that intelligent design is being taught.

THE COURT: Well, I understand. This is a bench trial. You say it's taught; you say it's not taught. I'll take that for what it's worth. The objection is overruled. You can answer the question.

THE WITNESS: I'm sorry, could you restate the question?

BY MR ROTHSCHILD:

Q. It says there, "Intelligent design means that various forms of life began abruptly." That's the opposite -- that is directly contrasting the claim of gradualism made by Ernst Mayr, correct?

A. The -- how shall I phrase this? The sentence there I read as saying that intelligent design can be consistent with; that the fact that the fossil records seems to have forms of life appearing abruptly, while it might cause problems for Darwinism, it does not cause problems for intelligent design, because intelligent design does not speak to how fast or how slow such things happen.

And so I see that as saying essentially an intelligent design proponent can take this data at face value and does not necessarily have to have secondary hypotheses to try to explain it.

Q. That's how you read the -- something that starts, "intelligent design means."

A. Well, again, as I said in my direct testimony, I don't think this was written very well, but I think the sense of that sentence is not hard to discern.

Q. All right. Why don't we continue on the subject of common descent. Could you go to page Roman numeral, small Roman numeral ten. This is in the introduction.

A. I'm sorry, I don't have a small Roman numeral ten in my book.

MR ROTHSCHILD: May I approach the witness, Your Honor?

THE COURT: You may.

THE WITNESS: Thank you.

BY MR ROTHSCHILD:

Q. In the last full paragraph of the page it says, "Of Pandas and People is not intended to be a balanced treatment by itself. We have given a favorable case for intelligent design and raised reasonable doubt about natural descent." Correct?

A. Yes, that's right.

Q. And if you d go to page 33.

MR. MUISE: Your Honor, may I just for purposes of the record, that was actually page nine and not page ten.

MR ROTHSCHILD: Did I say Roman numeral ten? I apologize. Roman numeral nine thank you.

THE COURT: The record is corrected.

MR ROTHSCHILD: Thank you.

BY MR ROTHSCHILD:

Q. And on page 33 under the heading, "A Living Mosaic," it says, "The theories of intelligent design and natural descent both have an explanation for why living things share common structures."

A. Yes, I see that.

Q. So there it's actually saying intelligent design is a separate theory from natural descent, correct?

A. Well, the way I read that phrase is that they're contrasting intelligent design with unintelligent processes, which I think they, again, just use the phrase natural descent as trying to indicate that. But I do not read it as opposing the theory of common descent.

Q. If you d go to page 127.

A. Yes.

Q. And if you could go to the middle of the second column, the paragraph headed, "Among Organisms."

A. I'm sorry, where is that?

Q. The second full paragraph.

A. Oh thank you, yes.

Q. Starts "Among Organisms," and going to the second sentence it says, "Design proponents have a realistic and more cautious approach to the use of homologies. They regard organisms which show great structural differences, such as starfish and chimpanzees, as having no common ancestry." Correct.

A. Yes, that's what it says, but again, I read that as the fact that while other theories such as Darwinisms might make a commitment to common ancestry, a theory of intelligent design can live with what the data shows on that respect, because a theory of intelligent design does not speak to that; it just speaks to the effects of intelligence. So I see this as an accommodating sentence rather than as something that is required.

Q. And if you could go to page 156.

A. Yes.

Q. And if you could look at the first column, the -- under the second indented paragraph where it says, "This is precisely."

A. Yes.

Q. "This is precisely why a book that questions the Darwinian notion of common descent is so necessary."

A. Yes, I see that. But --

Q. Okay, so --

A. Again, if I can just comment that, again, I see this as telling students or presenting to students that it seems that much of the data in the fossil record, as the writers of Pandas perceive it, is being fit into a theoretical framework which is dictated by Darwinian theory. And that if you do not invoke that theory and you look at the data in a different way, then intelligent design can live with whatever the results of that different look shows.

Q. In your view intelligent design doesn't have to take any position on common descent?

A. Yes.

Q. Okay. But here you say, Behe says, intelligent design is making no claim about common descent; and this book says, intelligent design questions the Darwinian notion of common descent. Those are the same thing to you?

A. I'm sorry, could you just repeat that, please?

Q. Behe says, intelligent design makes no claim about common descent.

A. Yes.

Q. Pandas says, intelligent design questions the Darwinian notion of common descent. Those are the same thing to you?

A. I see this as part of an argument. The -- as I try to make clear in my testimony, intelligent design is seen in the purposeful arrangement of parts, and that is the positive argument for intelligent design. But also, a part of the task of somebody who holds that view is to try to answer other views which claim to -- which claim to explain what intelligent design purports to explain.

And one of those is to show where the other theory has problems. And I view this as part of that kind of negative argument that, that while -- that while -- that while intelligent design can live with what data we have, this seems to be a problem for the current theory, as a number of paleontologists have said. And they ve tried to -- they ve tried to fix it up, and they propose these explanations, and perhaps they're right, but maybe that's not correct. And if it's not correct, well then this other theory, this rival theory is -- is -- has some difficulties, but that intelligent design does not. So I see it as part of a negative argument against a rival to intelligent design.

Q. And it's a negative argument against the part of that argument called common descent, correct?

A. That's correct, just as my argument was an argument against natural selection. And when people make claims for natural selection, I have to show why that is a poor explanation for what we see.

Q. So I think we're in agreement, in Pandas, intelligent design is making a claim about common descent in the same way you claim to be making a claim about natural selection?

A. No, I think that's incorrect. I think the claim of natural selection goes more directly to the question of the purposeful arrangement of parts.

The idea of common descent does not go, in my view, so directly to the question of the purposeful arrangement of parts. But nonetheless, as a part of Darwinian theory, it's required much more for Darwinian theory. Nonetheless, that would make that idea less plausible, and therefore that's part of the negative argument.

Q. Okay. So Pandas is making an argument against common descent, but you say intelligent design is not?

A. Pandas is making a negative argument against common descent to show the plausibility to greater -- more greatly enhance the plausibility of the alternative of intelligent design, that's correct?

Q. Thank you. Now, can we go back to page 11 of the report and highlight again the underscored text.

So this is back to the claim that you say intelligent design makes, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose."

Please describe the mechanism that intelligent design proposes for how complex biological structures arose.

A. Well, the word "mechanism" can be used in many ways. In this I was -- and when I was referring to intelligent design, I meant that we can perceive that in the process by which a complex biological structure arose, we can infer that intelligence was involved in it's origin.

Much like if I might refer back to the Big Bang theory, the Big Bang theory proposes no mechanism for how the universe arose, but nonetheless it infers that, whatever the mechanism, it came by some sort of explosive process.

So there are many other questions that these theories leave unaddressed, but they do posit some aspect of the cause which is very useful to have and which is supported by the data.

Q. So intelligent design is about cause?

A. I'm sorry, could you say that again?

Q. I just want to get it clear here, intelligent design is about cause?

A. Well, cause is a broad word, and when you re trying to explain how something came about, you can say it came about for a variety of reasons. But intelligent design is one reason or one aspect or one cause to explain how the purposeful arrangement of parts that we see did come about.

Q. Back to my original question. What is the mechanism that intelligent design proposes?

A. And I wonder, could -- am I permitted to know what I replied to your question the first time?

Q. I don't think I got a reply, so I'm asking you, you ve made this claim here, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." And I want to know what is the mechanism that intelligent design proposes for how complex biological structures arose?

A. Again, it does not propose a mechanism in the sense of a step-by-step description of how those structures arose. But it can infer that in the mechanism, in the process by which these structures arose, an intelligent cause was involved.

Q. But it does not propose an actual mechanism?

A. Again, the word "mechanism" -- the word "mechanism" can be used broadly, but no, I would not say that there was a mechanism. I would say we have an aspect of the history of the structure.

Q. So when you wrote in your report that "Intelligent design theory focuses exclusively on the proposed mechanism," you actually meant to say intelligent design says nothing about the mechanism of how complex biological structures arose.

A. No, I certainly didn't mean to say that. I meant to say what I said in response to that last question, that while we don't know a step-by-step description of how something arose, nonetheless we can infer some very important facts about what was involved in the process, namely, that intelligence was involved in the process.

And let me go back one more time to the Big Bang theory. Again, we don't have a mechanism for the Big Bang, but we can infer some important events about what happened, and that was that it happened in some explosive manner, it happened a distinct time ago and so on.

So additionally, I might say, that it also focuses on other proposed mechanisms that purport to explain the purposeful arrangement of parts. And so I think it is quite accurate to say that that's exactly where intelligent design focuses.

Q. So it actually -- it focuses on other proposed mechanisms, by that you mean natural selection, don't you?

A. No, just a natural selection, complexity theory and so on. But certainly the most widely accepted, and then the one that you would have to convince most people -- or explain to most people is not well supported is the one which is the currently accepted explanation of natural selection.

Q. Okay. And so in terms of mechanism, it's just a criticism of Darwinian evolution's mechanism and not a positive description of the mechanism?

A. No, I disagree. I say that while, again, while it does not give you a step-by-step description of how such things occurred, it does tell you something very important about the cause or the way in which these structures arose, and that was through the actions of an intelligent cause.

Q. So, Professor Behe, why don't we go to your deposition and see how you answered the questions then, okay?

A. Okay.

Q. Could you look at page 179 of your deposition.

A. Yes.

Q. I asked you, "What is the proposed mechanism of how complex biological structures arose according to intelligent design theory?"

A. Yes.

Q. And you answered, "Intelligent design does not propose a mechanism, it simply tries to support the conclusion that intelligent activity was involved in producing the structures."

A. Yes. And that language, I think, is completely consistent with what I was trying to say here today, that it does not tell you step by step how something was proposed -- or how something was produced, but nonetheless it says something very very important about the origin of the structure, and that is that intelligent activity was involved in producing it.

Q. And then further down the page at line 24 I asked you, "In terms of the mechanism, it's just a criticism of Darwinian evolution's mechanism and not a positive description of a mechanism." And what did you answer, Professor Behe?

A. I said "that's correct." But again, I think this is completely consistent with what I just said. Again, it does not propose a step-by-step description, but it -- but it proposes or it accounts for some very important features of what was involved in it's origin, and that is intelligent activity.

Q. You have, throughout your testimony over the past two days, criticized the concept of natural selection quite a bit, correct, or the claims made about natural selection?

A. Well, I think you have to be careful. I think natural selection is real, and certainly explains a lot of things. And what it's -- what it can explain, it explains well. And like I said, it does account for a number of features of life.

So I would not say I'm criticizing natural selection. I think that many people infer that natural selection has -- can explain things that I don't think it can, and so I've criticized those arguments and those extrapolations.

Q. But you obviously agree it is a valid phenomenon, it explains --

A. Yes, of course. Yes, sure.

Q. Including -- it explains things at the biological level, at the organism level?

A. Yes, it certainly does.

Q. And it also explains things at the biochemical level?

A. That's correct too, yes.

Q. For example, antifreeze proteins, that's an example of natural selection operating at the biochemical level, correct?

A. If by antifreeze protein you mean the particular antifreeze protein that was discovered in antarctic notothenioid fish a few years ago in which a gene for trypsinogen, the five prime region for that gene was found next to a coding region for a simpler one, yes, that's right, I do agree with that.

Q. You can read my mind.

And that -- that evolution through natural selection was demonstrated partly by experiment, partly by explanation, correct?

A. That's correct, yes.

Q. And you gave us a nice illustration of hemoglobin yesterday.?

A. Yes, I showed a slide of hemoglobin.

Q. Pretty complicated structure?

A. It certainly is, yes.

Q. And that is another thing where -- another biochemical system that you acknowledge can be explained through natural processes?

A. No, you have to be very very careful there. In my book I discuss the example of hemoglobin, and I said -- I discussed it as an example of something that may be amenable to Darwinian explanation. And I was careful to say that if you start at the starting point of a protein similar to what's called myoglobin, which is a single chain protein, and you probably recall yesterday that hemoglobin has four chains stuck together; if you have this single chain protein, myoglobin, which essentially has the very similar structure to hemoglobin, if you start with that, the question is, what does it take to form an aggregate of that structure with the properties of hemoglobin.

So I said, for that segment, starting with myoglobin, going to hemoglobin, that I did not see any impediment for natural selection to explain that. But I did not -- there certainly is no literature. There is no experiment. There is no detailed description of how that actually could happen. So I said that for purposes of argument I think that, you know, we can -- we can certainly say for now that perhaps Darwinian mechanisms can explain that.

Q. Now, before we go in detail into your argument from irreducible complexity, I want to confirm some other aspects of how you understand intelligent design.

It does not identify who the designer is, correct?

A. That's correct. Let me just clarify that. I'm talking about the scientific argument for intelligent design based on physical data and logic, yes.

Q. You believe it's God, but it's not part of your scientific argument?

A. That's correct.

Q. It does not describe how the design occurred.

A. I'm sorry?

Q. Intelligent design does not describe how the design occurred.

A. That's correct, just like the Big Bang theory does not describe what caused the Big Bang.

Q. Does not identify when the design occurred.

A. That is correct.

Q. In fact, intelligent design takes no position on the age of the earth or when biological life began.

A. That's correct.

Q. But think it was -- the earth as billions of years old or 10,000 years old.

A. That's correct.

Q. It says nothing about what the designer s abilities are.

A. Other than saying that the designer had the ability to make the design that is under consideration, that's correct.

Q. It sounds pretty tautological, Professor Behe.

A. No, I don't think so at all. When you see a structure, even in our everyday world, just think about archaeological structures such as a Sphinx or Easter Island or some such thing, one thing you can say is that these -- two things you can say, is that these things were designed, and that the intelligent agent or intelligent agents who designed them had the ability to design them. So I don't think that's tautological at all.

Q. Archeology is a science that you find very similar to the design argument of biochemical systems?

A. Well, archeology is a science, and design argument is an argument. But I think in archeology some of the reasoning they employ -- I'm not an archeologist, of course, but I understand that in some of the reasoning they employ is similar to their reasoning that intelligent design proponents such as myself might employ.

Q. But it is your position that we know the designer's abilities?

A. I'm sorry, could you say that again?

Q. It is your position that we know the designer s abilities?

A. Well, as I think I said in response to the question, we know the designer had the ability to make the design. So, but beyond that, we would be extrapolating beyond the evidence, so we can't say more than that.

Q. And we know nothing about the designer s limitations.

A. Well, we have to infer what we have from the data, and the data tell us that a designer can make a certain object. It does not say what the designer might not do. In our everyday world somebody who makes some simple object might be able to make a more complex one or so on.

Q. Intelligent design says nothing about the intelligent designer's motivations?

A. The only statement it makes about that is that the designer had the motivation to make the structure that is designed.

Q. How can intelligent design possibly make that statement, Professor Behe?

A. I don't understand your question.

Q. How can it possibly say anything about the intelligent designer's motives without knowing anything about who the intelligent designer is?

A. Well, I think it's -- that's pretty easy. For example, let's go back to the SETI project, Search for Extraterrestrial Intelligence. Suppose that astronomers in that project one day discerned a signal coming in from outer space that they discerned to be of intelligent origin, maybe even it carried a message or something like that exotic. How would they know the motives of whatever sent that? They might not know them, but nonetheless, they could -- as a matter of fact, the whole project is based on the assumption that they would be able to detect the message without knowing the motives of whatever sent it, without knowing it's abilities beyond the ability to send the message, and so on. So I don't think that's a problem whatsoever.

Q. Let me try and cut this short. It's fair to say that in the case of the intelligent designer and biological or biochemical life, we know nothing about it's ability or limitations except from what we conclude from the system that was designed?

A. Yes. A scientific theory makes -- draws it's conclusions from the physical evidence. So the fact that intelligent design draws conclusions from the physical evidence is completely consistent with what any good scientific theory could do.

Q. Well, I mean, let's take your analogy of human design. I want a nice car, right?

A. I believe that.

Q. And you could look at a car and say Eric made that because he wants a nice car, right?

A. I'm sorry?

Q. Eric made the car because he wants a nice car, right? That would be an inference about my motives based just on seeing the car in my garage, or that I bought the car?

A. No, I disagree. What you would say from looking at the car in your garage is that this car was designed, and if it was in your garage and it turned out that somebody was staying at your house that was not you and that was their car, well, then that's consistent with the conclusion of intelligent design. The extrapolation to who the designer was or who purchased the car or anything like that is unjustified by the data. If it was, you know -- well, I could make other examples, but I think the point is clear.

Q. And just to be -- just to wrap this point up, we know nothing about the intelligent designer's abilities or limitations except for what we can conclude from the specific system or object that we're observing?

A. Since intelligent design is a scientific theory, it has to draw it's conclusions from physical data. So yes, that's how we determine whatever we know about the design and whatever inferences we make to the cause of the design.

Q. And similarly, we know nothing about the intelligent designer's motives or needs or desires except for what we can conclude from the specific system that we're observing?

A. Yes. Let me just reiterate that, that in fact a scientific theory depends on physical data. It can't depend on anything else. And so of course it has to draw whatever inferences it can from the physical data that it has available.

Q. Okay, and in this case that's just the system we're look at, the bacterial flagellum?

A. Well, if you're considering the bacterial flagellum, then yes, that would be it, you could consider other things as well.

Q. Now, you ve told this Court that intelligent design does not involve supernatural action, correct?

A. That's correct. I -- no, I said that it -- it's -- intelligent design is a scientific theory that focuses exclusively on physical data and logical inferences. And so since any scientific theory does not infer from beyond the data, then we cannot say anything about whether some structure was produced by supernatural means.

Q. Could you open Darwin's Black Box, which is plaintiff's exhibit 647.

A. What page?

Q. I'm sorry. Page 193.

A. 193, thank you.

MR ROTHSCHILD: Matt, could you highlight on page 193, the first paragraph.

BY MR ROTHSCHILD:

Q. Could you read that paragraph, Professor Behe?

A. Can I read from the book here?

Q. Yes, please.

A. Okay. "There is an elephant in the roomful of scientists who are trying to explain the development of life. The elephant is labeled intelligent design. To a person who does not feel obliged to restrict his search to unintelligent causes, the straightforward conclusion is that many biochemical systems were designed. They were designed not by the laws of nature, not by chance and necessity, rather, they were planned. The designer knew what the systems would look like when they were completed, then took steps to bring the systems about. Life on earth at it's most fundamental level, in it's most critical components, is the product of intelligent activity."

Q. They were designed not by the laws of nature, correct, Professor Behe?

A. That is correct.

Q. Professor Behe, if you could turn to exhibit 718, which is Reply to My Critics.

MR ROTHSCHILD: And, Your Honor, we'll have it up on the screen, but if it's easier to look at paper, I have a copy.

THE COURT: No, if you're going to put it up, that's fine.

BY MR ROTHSCHILD:

Q. And Professor Behe, it's fair to say that this is one of your most significant published works on the subject of intelligent design since Darwin's Black Box?

A. Well, this is where I, as the title implies, I try to address criticisms that have been raised against the intelligent design proposal.

Q. One of your more important pieces of work on this subject?

A. I consider it to be, yes.

Q. Could you turn to page 696 of that article.

A. Yes.

MR ROTHSCHILD: And, Matt, if you could go to the, I guess the first full paragraph, which begins "In such a view," and highlight the passage that begins "By intelligent design" midway through the page.

BY MR ROTHSCHILD:

Q. And here you say, "By intelligent design I mean to imply design beyond the simple laws of nature. That is, taking the laws of nature as given, are there other reasons for concluding that life and it's component systems have been intentionally arranged."

And going further down the page you say, "In my book, and in this article, whenever I refer to intelligent design, I mean this stronger sense of design-beyond-laws."

And those are natural laws, correct, Professor Behe?

A. Yes. And if you read that sentence that you skipped over there, it says, By intelligent design I mean -- I'm sorry, let me see -- I kind of got lost here. I mean to design -- "I mean to imply design beyond the simple laws of nature. That is, taking the laws of nature as given, are there other reasons for concluding that life and it's component systems have been intentionally arranged, just as there are reasons beyond the laws of nature for concluding a mousetrap was designed."

What I was intending by that passage was something much less grand than the design of the laws of nature, to which I was contrasting my position. I was likening it to the design that is involved in simple mechanical objects such as the mousetrap. And as I explained in my testimony, that is exactly the basis for how we detect design, when we perceive the purposeful arrangement of parts.

So that is the sense of design in which I meant. It's actually a more modest sense of design than design of the laws of nature.

Q. Mechanical design of a mousetrap is beyond the laws of nature, Professor Behe?

A. It requires intelligent activity. It's beyond unintelligent -- the operation of unintelligent laws. There is no law of nature that explains a mousetrap.

Q. They are designed by natural actors, correct?

A. That's correct, but how they act is not described by any law that I know of, and I have -- I have never read any law that describes how a mousetrap comes about.

Q. Well, why don't we go on to page 700. If you could highlight the question that Professor Behe is asking on this page. "Is it plausible that the designer is a natural entity?" in the first full paragraph.

That is the question you ask. "Is it plausible that the designer is a natural entity?"

MR ROTHSCHILD: And then if, Matt, if you could actually go to the next two full paragraphs and highlight those.

BY MR ROTHSCHILD:

Q. And you say, "The problem is the following. Currently we have knowledge of only one type of natural intelligent designer even remotely capable of conceiving such structures as are found in the cell, and that is a human. Our intelligence depends critically on physical structures in the brain which are irreducibly complex. Extrapolating from this sample of one. . . " -- that's humans, correct?

A. Yes, that's right.

Q. ". . . it may be that all possible natural designers require irreducibly complex structures which themselves were designed. If so, then at some point a supernatural designer must get into the picture.

"I myself find this line of reasoning persuasive. In my estimation, although possible in a broadly permissive sense, it is not plausible that the original intelligent agent is a natural entity. The chemistry and physics that we do know weigh heavily against it. If natural intelligence depends on physical organization, then the organization seems likely to have to be enormously complex and stable over reasonable periods of time. While simpler systems may perform the tasks that irreducibly complex systems perform a terrestrial life, they would likely perform them more slowly and less efficiently, so that the complexity required for intelligence would not ultimately be achieved. Thus, in my judgment it is implausible that the designer is a natural entity."

You don't absolutely rule it out, but you're not taking it very seriously, are you?

A. Well, I've said that quite a number of times. I think I said that at the beginning of my testimony yesterday, that I think in fact from -- from other perspectives, that the designer is in fact God. But if you turn back to page 699, there's a section entitled, "Is it possible that the designer is a natural entity?" And I won't quote from it, but I come to the conclusion there that sure it's possible that it is, but I do not -- I myself do not find it plausible.

Let me again liken this to the Big Bang theory. Is it possible that there was some event in nature that caused such a thing? Yes, it's possible. We know of no such event, we don't -- you know, we haven't known of such an event since the Big Bang theory was first proposed something like 75 years ago; but it's certainly possible. It's also possible that it wasn t.

And the distinction that I was trying to make throughout my testimony is that when we use scientific reasoning, and when we constrict ourselves to physical evidence and logical reasoning, we can only go so far. We can say we don't have a natural -- we don't have an explanation for this event right now. We cannot -- and the history of science shows this time and time again, we cannot say that because we don't have a natural or an explanation for a certain event now, that we won't have one in the future. Intelligent design I think is in the same category as the Big Bang on that point.

Q. And I know you're fond of the Big Bang, but let's be clear, you're not an expert in physics, correct?

A. That is correct.

Q. And nor an expert in astrophysics?

A. That's right.

Q. Okay. And you're making a pretty scientific argument here, physics, chemistry, they pretty much rule out a natural designer; that's what you're trying, right?

A. No --

Q. Not absolutely, but makes it pretty implausible?

A. That's what implausible means. Yes, but again, the conclusion from this evidence does not lead one to an explanation beyond nature.

With this I was also relying on my other -- on considerations other than scientific ones, from philosophical, theological and historical beliefs. So again, arguing from scientific data only takes you so far. It takes you to the point of the fact that we do not have an explanation for this event right now. But to go beyond that requires a reasoning beyond just scientific reasoning.

Q. So in Darwin's Black Box you said beyond nature, in this article you said beyond nature, but that's just your theological hat?

A. Well, as my discussion of John Maddox s editorial from yesterday Down with the Big Bang which occurred in Nature, and my discussion of Arthur Eddington's writings, and my discussion of Walter Nernst's comments, many people saw in the Big Bang implications for theology and philosophy and things beyond nature.

So I think that -- that nonetheless we would all agree that the Big Bang is a scientific theory in the same way intelligent design, in my view, is a scientific theory, even if somebody like John Maddox sees for this theory that it has implications beyond science.

Q. Now, you ve said in your testimony today and yesterday you personally believe the designer is God.

A. Yes.

Q. And in this article in fact you say for purposes of the discussion I'm going to assume the supernatural entity is God, right?

A. Yes.

MR ROTHSCHILD: And, Matt, if you could turn to page 705 of the article. If you could highlight the top paragraph, until the sixth line.

And you write here, "What if the existence of God is in dispute or is denied? So far I have assumed the existence of God. But what if the existence of God is denied at the outset, or is in dispute? Is the plausibility of the argument to design affected? As a matter of my own experience the answer is clearly yes, the argument is less plausible to those for whom God s existence is in question, and is much less plausible for those who deny God's existence."

It's a God friendly theory, isn't it, Professor Behe?

A. Let me respond in a couple of ways to that. First, let me clarify for context that this is a journal called Biology and Philosophy. So not only am I speaking about scientific matters here, but I'm also talking about nonscientific matters here in an academic forum. Academics embraces more than just science. This is an academic forum which also embraces philosophy, and so I addressed philosophical issues as well.

And again, my statement as written is certainly correct. And it's happened time -- many times in science, and, again, I'll just refer back to John Maddox's article Down With the Big Bang. He didn't like the Big Bang theory. And it wasn t because the data were inconsistent with it, it's because it was philosophically unacceptable. Walter Nernst hated the idea of a beginning to the universe. It was unscientific. So -- and other people have said similar things.

So it's clearly true that people make decisions even about a scientific theory, based not only on the science itself, but what they perceive as other ramifications of the theory.

But I argue, I've argued a number of places, that it's the proper role of a scientist to leave aside those other considerations as much as possible and focus simply on the scientific data.

Q. That's what you try to do as a scientist?

A. Yes, I do.

Q. The year you wrote Darwin's Black Box was also the year that the Center for the Renewal of Science and Culture at the Discovery Institute was founded, correct, 1996?

A. Is that -- I'm fuzzy on the date of the establishment of the Center for Renewal, yeah.

Q. You were one of the Center's fellows from the beginning, correct?

A. Yes, that's correct. I was asked to join by Bruce Chapman, who was the president of the Discovery Institute.

Q. And you ve remained a fellow since that time, correct?

A. Yes, I'm still a fellow.

Q. And even before the Discovery Institute was founded, you participated in the Pajaro Dunes conference?

A. Yes, that was a private conference which was organized by a man named Phillip Johnson.

Q. And in addition to Mr. Johnson, yourself, Stephen Meyer was there?

A. Yes, Steve Meyer was there too.

Q. William Dembski?

A. He was there too.

Q. Paul Nelson?

A. Yep.

Q. Dean Kenyon?

A. Him too.

Q. Okay, and you all discussed your ideas?

A. Yes, that was the purpose of the conference, to talk with each other and to bounce ideas off of each other and so on.

Q. And all of the individuals I've mentioned, including yourself, became fellows or officers of the Discovery Institute's Center for Renewal of Science and Culture, correct?

A. I'm not sure. I'll take your word for it, though.

Q. Okay. And you have no reason to doubt that?

A. I don t, no.

Q. And you accept funding from the Center for Renewal of Science and Culture?

A. As -- over the past years, and there was a time about -- a period of three years, about eight years ago, up to about five years ago, where I was given a grant by the Discovery Institute -- well, actually I wasn't given a grant, the Discovery Institute gave a sum of approximately 8,000 to $10,000 per year to the university to release me from some teaching obligations so that I could write and think about intelligent design issues.

Q. And that happened for about five or six years, is that right?

A. No, three years.

Q. Three years, okay.

And in fact the Discovery Institute's Center for Renewal of Science and Culture heralded your work in a document it prepared called The Wedge Strategy, didn't it?

A. I'll have to refresh my memory, but I think they did, yes.

MR ROTHSCHILD: Matt, if you could put up 140.

May I approach the witness, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. This is a document that you ve been aware of for some time?

A. I heard about it. I wasn't aware about it until I heard about it being discussed on the Internet. Apparently somebody purloined this document, or took the document from the Discovery Center and posted it on the web, and there was a discussion of it then. That's when I became aware of it.

Q. And you read it?

A. Yes, I think I did after it came out.

Q. And if you could turn six pages in, and it actually has handwriting that says page four on it. And you see there's a section called the "Five Year Strategic Plan Summary."

A. Yes.

MR ROTHSCHILD: If you could highlight that first paragraph there, Matt.

BY MR ROTHSCHILD:

Q. What it said here was, "The social consequences of materialism have been devastating. As symptoms, those consequences are certainly worth treating. However, we are convinced that in order to defeat materialism, we must cut it off at it's source. That source is scientific materialism. This is precisely our strategy. If we view the predominant materialist science as a giant tree, our strategy is intended to function as a wedge that, while relatively small, can split the trunk when applied at it's weakest points. The very beginning of this strategy, the thin edge of the wedge was Phillip Johnson s critique of Darwinism begun in 1991, in Darwinism on Trial, and continued in Reason in the Balance and Defeating Darwinism by Opening Minds. Michael Behe's highly successful Darwin's Black Box followed Johnson's work. We are building on this momentum, broadening the wedge with a positive scientific alternative to materialistic scientific theories, which has come to be called the theory of intelligent design. Design theory promises to reverse the stifling dominance of the materialist world view, and to replace it with a science consonant with Christian and theistic convictions."

You were aware of this passage in the document when you read it?

A. I assume I did read it, yes, roughly at that point.

Q. And you were aware that your work was described in this context?

A. Yeah, I saw it mentioned there, yes.

Q. Okay. And you were a fellow at the time you became aware of this document?

A. That's correct. I did not -- I did not -- I was not aware of it before it was placed on the Internet. I don't know the source of the document, who wrote it, whether it was some -- somebody's draft of something, whether it was a fundraising letter, whether it was, you know, something else, but I did not know.

Q. A strategy document? You don't know?

A. I don't know, no. You know, again, if one doesn't see who wrote it, I don't know what to make of this.

If this was written by somebody who had no particular importance in the organization, or who had in mind something that would not, you know, be approved by people in charge or some such thing, then there was no particular reason to pay attention to it.

Q. But you continued on as a fellow after seeing this?

A. You bet I did. I -- you know, I very much enjoy my association with the Discovery Institute. I think that people associated with it are very helpful in my -- developing my ideas. And yes, I'm -- I place much value on my contacts there.

MR ROTHSCHILD: Your Honor, I d just like to discuss one more exhibit with Professor Behe, and that might be a good time to break, and it will be brief.

THE COURT: After that?

MR ROTHSCHILD: Yes.

THE COURT: All right, I'll let it to your discretion.

MR ROTHSCHILD: Thank you.

BY MR ROTHSCHILD:

Q. You testified that you had been invited to write articles about intelligent design several times for The New York Times?

A. I'm sorry?

Q. You testified yesterday that you have been asked on several occasions to write articles for The New York Times.

A. I was invited several times to contribute op-ed pieces on various news items -- or on various topics in the news at that time for The New York Times, yes.

Q. And let me show you exhibit 723.

A. Thank you.

Q. This was an article you wrote in 1996?

A. That's right. The occasion was that Pope John Paul II, had issued a letter to the Pontifical Academy of Sciences concerning evolution, and it was very much in the news at that point. And The New York Times had just reviewed my book earlier in the summer, and so they knew that I was a Catholic scientist and that I might be an appropriate person to write commentary on that event.

Q. And in the second full paragraph, beginning, "I grew up," you write, "I grew up in a Catholic family and have also believed in God. But beginning in parochial school I was taught that He could use natural processes to produce life. Contrary to conventional wisdom, religion has made room for science for a long time. But as biology uncovers startling complexity in life, the question becomes, can science make room for religion."

That's what you wrote, correct?

A. Yes, that's right.

Q. And then you went on to discuss your proposition of intelligent design as set forth in Darwin's Black Box, correct?

A. And if I could just say that by that phrase, "can science made room for religion," I had in mind reactions like that of John Maddox and that of Arthur Eddington and that of Walter Nernst, who were thinking that science necessarily had to rule out things whose philosophical or other implications did not disturb them.

Q. And those names are nowhere in this article.

A. I had, I think, 900 words to talk about this. So there are many many other things that I could have included in writing on the topic like this, which I did not have the room to do.

Q. Big Bang was between the lines here.

A. Actually, I mention the Big Bang as often as I can. I'm surprised I didn't have it in here.

Q. Maybe we could take this as a precedent.

And if you could go to the second page. And the second to the last paragraph, you write, "Intelligent design may mean that the ultimate explanation for life is beyond scientific explanation. That assessment is premature. But even if it is true, I would not be troubled. I don't want the best scientific explanation for the origins of life; I want the correct explanation."

That's what you wrote, correct?

A. I certainly did write that, and I think it's a quite reasonable statement.

The Big Bang might ultimately be beyond scientific explanation. We have no explanation for the Big Bang right now. Many people, including people who don't like it, see theological and philosophical implications in the Big Bang theory. I put intelligent design in the same category, as I've mentioned before in my testimony.

We do not have any unintelligent explanation for life. We don't have any current explanation. We don't rule it out, but ultimately we might not have one. And ultimately it might not have -- might not receive a scientific explanation. And if that's the case, well then that's the case, we just have to follow the evidence where it leads.

Q. Just so we're clear, the Big Bang has been accepted by significant portions of the scientific community?

A. That was about three decades or so after it was first discussed by George Lemaitre, a Belgium priest, who first proposed it based on observations of the red shift of the galaxies and apparent expansion of the universe. But for the first several decades it was extremely controversial and not well accepted.

Q. But the answer is yes, it has been well accepted?

A. After three decades it became accepted.

Q. And intelligent design, now after several decades of it's modern era, has not been accepted, in fact, it's regularly rejected?

A. Intelligent design certainly is not the dominant view of the scientific community, but I'm very pleased with the progress we're making. As I've tried to make clear in my testimony, although some -- many scientists do not like it, if you look at their statements, you do not see any scientific evidence which, when examined closely, is -- when examined closely, shows that intelligent design is incorrect.

Q. Okay. It's not been well accepted or indeed accepted by anything but more than a small minority of scientists.

A. Well, again, I'm afraid I'm -- I think the situation is a whole lot more complex than perhaps you do.

Statements of large scientific organizations do not represent the views of their members, other than -- much like statements of other organizations might represent all the views of all their members. And I think that if you actually surveyed a large number of scientists and you ask them carefully what they thought about how one could explain life, I think that a significant fraction would indeed say that something like intelligent design was plausible.

Q. That's just speculation on your part?

A. Well, it's based on some experience that I've had talking with scientists in many of these discussions that I have. Many scientists have misimpressions of intelligent design, and when they I speak with them, they oftentimes see that it's more -- has a more compelling argument than is oftentimes presented in publications, magazines, and so on. So it's based on some experience.

MR ROTHSCHILD: This would be a good time to break, Your Honor.

THE COURT: Are you going to pick up more cross tomorrow?

MR ROTHSCHILD: Yes.

THE COURT: All right. We'll recess then for the day at this point, the hour being almost at 4:30, and we will reconvene at 9 a.m. tomorrow and continue with Mr. Rothschild's cross examination of the witness.

We're in recess. Thank you.

THE DEPUTY CLERK: All rise.

(4:28 p.m., court adjourned.)