Fight of the Century

by Michael Chabon

  The Court’s 2008 ruling on the suspension clause blocked further congressional interference with the habeas rights of Guantánamo detainees. Still, many basic questions were left unanswered, including the admissibility of evidence in these detention reviews (hearsay was being allowed by the district court) and the reach of the Court’s habeas rulings into other notorious corners, beyond Guantánamo, of the military’s new prison system—places such as Bagram Air Base in Afghanistan and Abu Ghraib in Iraq. Prisoner arrivals at Guantánamo slowed to a trickle after Rasul and then stopped altogether, and releases steadily reduced the facility’s population, and yet virtually none of these releases was court ordered and none was to the United States. (Congress forbade release to the United States specifically and repeatedly, even for the most harmless detainees, the most blatant cases of mistaken arrest, and even when the detainees had nowhere else to go.) The political pressure brought by court cases has been a factor in some releases, certainly, but the habeas process has rarely, if ever, been allowed to run its legal course.

  Two of the original Rasul petitioners—Rasul and Iqbal, the British citizens—were actually released during the Supreme Court’s consideration of their case. (The lawyers had added more petitioners, including twelve Kuwaitis and a second Australian.) It seemed that the main crimes the prisoners had been forced to confess to—the meetings in Afghanistan with bin Laden and Mohammed Atta—could not possibly have occurred. MI5, the British intelligence service, which had been collaborating in the interrogations, simply looked at employment, police, and passport records that showed the detainees, just as they had claimed, working and going to college in the British West Midlands during the period in question. David Hicks, the original Australian petitioner, was later convicted by a military commission of having fought with the Taliban, served a short sentence, and returned to Australia in 2007.

  But the military commissions have barely functioned, and forty prisoners remain in Guantánamo today, the majority still uncharged. Five have been cleared for release but remain locked up. President Barack Obama, who vowed to close the prison, failed. His administration did try to move the case of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, who was reportedly waterboarded 183 times, from Guantánamo into the civilian court system, scheduling him and four alleged co-conspirators for trial in the Southern District of New York in 2011. The objections of Congress and local authorities in New York to a criminal trial were so fierce and frightened, however, that the administration was forced to fall back. The status of most of the remaining Guantánamo prisoners is a hapless, law-free muddle—too difficult to try, too dangerous to release. Their plight shows, among other things, the moral jeopardy, the legal rot, that grows when we remain too long on an ill-defined war footing.

  KITZMILLER V. DOVER AREA SCHOOL DISTRICT (2005)

  In Edwards v. Aguillard (1987), the Supreme Court ruled that a Louisiana law requiring that creationism be taught whenever evolutionary science was taught violated the establishment clause of the First Amendment since it advanced a particular religious belief. Kitzmiller v. Dover Area School District extended that reasoning to school district policies requiring the teaching of “intelligent design” as part of the biology course curriculum. District judge John E. Jones III found that intelligent design is not science and “cannot uncouple itself from its creationist, and thus religious, antecedents.” Therefore, he reasoned, a policy requiring the teaching of intelligent design would, like a policy mandating the teaching of creationism, advance a particular religious belief in direct violation of the Constitution.

  Who’s Your Villain?

  ANTHONY DOERR

  Someone Burns the Monkey Mural

  In 1998, in a leafy corner of eastern Pennsylvania, a graduating senior at Dover Senior High School paints a sixteen-by-four-foot mural of hominids jogging left to right across a treeless landscape. The primate farthest to the left scampers like an ape, the ones to his right become successively less apelike, and the one farthest to the right runs like a human.

  Monkey becomes man. You get it.

  For four years the painting sits in room 217, propped in a chalkboard tray, apparently gnawing away at the sensibilities of certain folks, until one weekend in 2002, just before the school year begins, when the grounds supervisor orders his crew to burn it.

  Soon afterward, science teachers at Dover High start hearing whispers that the school board is filling with people with an aversion to Darwin’s theory of evolution. One board member, a former corrections officer named Bill Buckingham, even carries a photo of the now-incinerated mural in his wallet, telling people that he “gleefully watched it burn.”

  In 2003, Buckingham becomes chair of the school board’s curriculum committee, which means he’s in charge of evaluating new textbooks. When he receives a routine request from Dover’s ninth-grade teachers for a new edition of Biology, perhaps the most widely used biology textbook in the United States at that time, Buckingham leafs through a copy and finds it “laced with Darwinism,” as though the book were a pile of marijuana sprinkled with PCP.

  “It wasn’t on every page of the book,” he says, “but, like, every couple of chapters, there was Darwin in your face again.”

  In search of an alternative, Buckingham contacts the Thomas More Law Center, a Christian nonprofit in Michigan, whose motto is “The Sword and Shield for People of Faith” and whose website header features a cross, a sword, an angry bald eagle, and a misty painting of George Washington praying in the snow. One of its cofounders is the founder of Domino’s Pizza. The Thomas More Center tells Buckingham about a 1993 textbook, Of Pandas and People. The book displays a bamboo-holding panda on the cover, starts with a quote from Carl Sagan, includes some cool-looking diagrams, and seems legit—until you actually read some of it.

  Pandas, for example, ignores the fact that species go extinct (they do), implies our planet could be thousands of years old (it’s 4.543 billion years old), claims that the fossil record doesn’t include transitional fossils such as limbed fish (wrong), says big dogs can’t breed with little dogs (they can and do), argues that giraffe necks are long because their legs are long (huh?), and declares that the different forms of life on Earth spontaneously blooped into existence “with their distinctive features already intact—fish with fins and scales, birds with feathers, beaks, and wings, etc.”

  How did so many different-looking creatures show up here fully formed? Easy: they were designed by “an intelligent agent.”

  Oh. This Is About God?

  Yep. And nope. Look, the diversity of life on Earth is mind shattering, and I can absolutely understand how someone might disbelieve the fact that, over incomprehensible eons, platypuses, woodpeckers, microscopic tardigrades, pterodactyls, and Kerry Washington all evolved from primordial microbes you can’t see with the naked eye. That sounds crazy. Humans share 60 percent of our genetic material with bananas? Crazy 2.0.

  I also get how the discoveries of science—especially the ones that seem to continually prove our insignificance—can scare people. It was scary when we figured out that the Earth wasn’t the center of the solar system, and it was even scarier when we figured out that there were 2 trillion galaxies in the universe. What about the soul? What about transcendence? As Pascal put it three and a half centuries ago, “When I consider the short duration of my life, swallowed up in an eternity before and after, the little space I fill engulfed in the infinite immensity of spaces whereof I know nothing, and which know nothing of me, I am terrified.”

  And I also understand that the inner workings of life are so cool and so complicated that some folks feel they must conclude we were designed by an almighty Designer. Think, for example, of the astonishing number of things that have to go right so you can read this sentence: your irises have to correctly dilate your pupils, your retina has to convert the light bouncing into your eye into electrical impulses, your optical nerves have to relay them to your brain at the speed of light, and your brain, floati
ng in total darkness, has to create meaning from black hieroglyphs on a white background. It’s astonishing!

  But the existence of complex life-forms does not prove that God schemed up every creature on the planet and set them here fully formed like a child placing LEGO figures on a table. If an intelligent agent designed all the creatures on Earth, why have 99.9 percent of the species that have ever lived gone extinct? That doesn’t sound very intelligent. If we humans were designed, why would we get hiccups and hernias? Why do we grow wisdom teeth and appendixes and male nipples? Why do we have big chunks of fish DNA in our genome?

  Gods might be everywhere, gods might have ignited the first spark of life on our planet, gods might be floating above our heads judging us this very second, but the only scientifically viable explanation for the origin of species is evolution.

  The Parents Lawyer Up

  Of Pandas and People doesn’t specify whether its “intelligent agent” is the Abrahamic God, E. T., or the rainbow serpent of the Australian aborigines, but Bill Buckingham, curriculum chair on the Dover school board, is pretty sure he knows who it is. As he puts it, “Two thousand years ago someone died on a cross. Can’t someone take a stand for him?”

  In fall 2004, when Buckingham fails to convince the school superintendent to purchase 220 copies of Of Pandas and People, he gets in front of his church and raises enough money to buy sixty, which are then donated anonymously to Dover High. And on October 18, the school board votes 6–3 to approve Buckingham’s motion that before any science teacher in the district teaches evolution, she’ll have to read a four-paragraph statement explaining that the concept of intelligent design is a viable alternative to Darwin’s theory of natural selection. She’ll also have to announce that copies of Pandas are freely available to any kids who want to check them out.

  Dover High’s science teachers refuse to read the statement, so the superintendent and his assistant read it instead. Freaked-out parents, including a mother of two named Tammy Kitzmiller, get in touch with the ACLU, and in December Kitzmiller and ten other Dover High parents (many of them devout Christians) file suit in the Middle District of Pennsylvania, alleging that the school board is violating their constitutional rights by thrusting religion into their kids’ science class.

  Judge Jones Goes to School

  Ten months later, Kitzmiller v. Dover Area School District goes to trial in Harrisburg. The parents are represented by attorneys from the ACLU, Americans United for Separation of Church and State, and Pepper Hamilton, a Philadelphia law firm. The school board is represented by the Thomas More Law Center. The presiding judge is a salt-and-pepper-haired fifty-year-old named John E. Jones III, a Republican recommended by Senator Rick Santorum and appointed in 2002 by President George W. Bush.

  Because it is a civil suit, no jury is present; instead the jury box bustles with reporters. For most of the next forty days, something extraordinary happens: a white-and-blue-paneled courtroom in rural Pennsylvania becomes a classroom in which, interspersed with local witnesses, a series of paleontologists, molecular biologists, geneticists, and theologians educate Judge Jones and the reporters in attendance about the ever-growing avalanche of evidence supporting Darwin’s theory of evolution.

  Robert Pennock, a biologist and philosopher at Michigan State University, explains how experiments with fast-replicating organisms like E. coli allow biologists to see natural selection happen in real time. Berkeley paleontologist Kevin Padian, looking as if he has just brushed dinosaur dust off his khakis, shows the court slides of feathered dinosaurs and hippo-like whales, transitional fossils that Of Pandas and People claims do not exist. Brian Alters, a science education professor from McGill University, calmly explains that “claims of supernatural intervention in the origin of life or of species are not science because they are not testable” and Ken Miller, coauthor of the Biology textbook that the Dover teachers requested, puts it like this:

  One might say, for example, that the reason the Boston Red Sox were able to come back from three games down against the New York Yankees was because God was tired of George Steinbrenner and wanted to see the Red Sox win. In my part of the country, you’d be surprised how many people think that’s a perfectly reasonable explanation for what happened last year. And you know what, it might be true, but it certainly is not science, it’s not scientific, and it’s certainly not something we can test.

  John Haught, a theologian from Georgetown University, makes a similar argument:

  Suppose a teapot is boiling on your stove and someone comes into the room and says, explain to me why that’s boiling. Well, one explanation would be it’s boiling because the water molecules are moving around excitedly and the liquid state is being transformed into gas. But at the same time you could just as easily have answered that question by saying, it’s boiling because my wife turned the gas on. Or you could also answer that same question by saying it’s boiling because I want tea. All three answers are right, but they don’t conflict with each other because they’re working at different levels. Science works at one level of investigation, religion at another.… You can have a plurality of levels of explanation.

  When it comes to the defense’s turn, they don’t have to disprove evolution; all they really have to do is prove that intelligent design is good science. But because it’s not possible to use the natural to prove the existence of the supernatural, they can’t do that, so they mostly resort to attacking the credibility of their opponents.

  Forty days after the trial begins, it ends. Judge Jones produces an unequivocal 139-page opinion, ruling that intelligent design is simply a rebranding of biblical creationism and that to teach it in a public school science classroom is unconstitutional because it violates the separation of church and state.

  “The citizens of the Dover area,” he writes, “were poorly served by the members of the Board who voted for the ID [Intelligent Design] Policy. It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the ID Policy.”

  In the next school board election, all eight candidates who run opposing the addition of intelligent design to the science curriculum win.

  If Only This Were the End

  If this were the end, you and I could make a feel-good movie about all this, at the end of which the school board fundamentalists would shuffle off-screen, Judge Jones would fly-fish a pristine stream, the Dover High parents would hold a big racially inclusive backyard jamboree, and the ninth graders would grow up to save an endangered salamander, eradicate malaria, and discover a new solar system. In the final frames, a golden, reasonable light would cascade across the Republic, and our audience could head home thinking: Gosh, remember that battle we had with ignorance and denialism back in 2005? Sure glad that’s behind us.

  So, Um, Not the End?

  In early 2018, a survey conducted by a number of Holocaust education nonprofits found that two-thirds of American millennials could not say what Auschwitz is. A couple of months later, the White House declared that American poverty “was largely over”—even as millions of Americans struggled to afford housing and health care. A few months after that, 53 percent of Americans said they believe—wrongly—that the flu shot could give them the flu.

  A poll conducted at the end of 2018 by NBC and the Wall Street Journal found that only 15 percent of Americans who identified as Republican believe climate change is “serious” and “requires immediate action.” (In 2007, that percentage was 16 percent.) Propagandists around the world continue to try to convince parents that it is dangerous to give their kids the measles vaccine, and almost four in ten American adults continue to believe that God created humans in their current form within the last ten thousand years.

  Ironically, when a victory against denialism like Kitzmiller v. Dover occurs, it tends to feed a narrative denialists can use to fuel more denialism. See how they silence us? they say. We are t
he underdogs; we see the truth; it’s all a conspiracy. “Central to denialism,” writes the British sociologist Keith Kahn-Harris, “is an argument that ‘the truth’ has been suppressed by its enemies. To continue to exist is a heroic act, a victory for the forces of truth.”

  What seems almost quaint now, fourteen years after Kitzmiller, is that the school board and the Thomas More Law Center tried so hard to argue that intelligent design was “good science education, good liberal education.” Like the authors of Of Pandas and People, they cloaked a religious agenda in the language of pseudoscience with the hope it would be accepted as mainstream.

  Nowadays people don’t bother to try as hard to be accepted as mainstream, because nowadays the mainstream has frayed into a thousand separate streams. Nowadays it’s easier to manufacture whatever realities we please. “Just remember,” the president of the United States told a group of veterans in July 2018, “that what you’re seeing and what you’re reading is not happening.” And so poverty becomes a problem of the past, one-hundred-year storms become acts of God, climate change becomes a hoax, desperate migrants become dangerous invaders, and scientific consensus becomes a conspiracy.

  Where to Go from Here?

  Hey, we all refuse to believe things right in front of our eyes, particularly when the prospect of accepting those truths scares us. We are all denialists to some degree. I, for example, continue to believe, despite all evidence to the contrary, that Airborne effervescent drinks will keep me from getting colds, even though study after study has shown that the tablets do absolutely nothing more than give you a freakishly high dose of Vitamin C. I continue to believe that I will not become a corpse (corpses are what happen to other people), and I continue to believe that I care about climate change, even though I continue to drive a car, fly on airplanes, turn on heaters and air conditioners, use plastic every day, and participate in a system that is weaponizing our planet against my kids. And I continue to believe at least a thousand other things that my grandkids will likely find ludicrous. (“Grandpop thought his family photos would be preserved if he uploaded them to the ‘cloud’!” “Grandpop used the word America!” “Grandpop thought aliens weren’t real!”)