The Final Frontier

Circling the earth in the orbital spaceship, I marveled at the beauty of our planet.  “People of the world!  Let us safeguard and enhance this beauty — not destroy it!”   —Yuri Gagarin

Yuri Gagarin

It was 50 years ago today that the 108-minute orbital flight of Yuri Gagarin ushered in the modern space era.  On April 12, 1961, the 27-year old Gagarin made his way in the early morning to the Baikonur Cosmodrome in what is now Kazakhstan.  The launch pad from which he took off in the rocket that carried the single-man Vostok 1 spacecraft remains in use today:  the latest crew of the International Space Station was launched from the same site last week, and to this day cosmonauts ritually stop on the way to “take a leak,” just as Gagarin did that morning.  Gagarin completed a single orbit in his spacecraft before returning to Earth, ejecting himself from the craft at an altitude of about 4 miles and returning to land by parachute.  It was only a few years later, in 1968, that Gagarin would die in a routine training accident, shortly after he had been scheduled for a second mission into space. 

The launching of the “space race” is one that drew humanity together in a time when the world was plagued by the political divisions of the cold war.  To be sure, there was competition between Americans and Soviets in reaching landmark achievements in the exploration of space, but the world also saw the accomplishments of Gagarin, Armstrong, and others more majestically as the accomplishments of Man.  Many of my personal friends were influenced to pursue careers in astronomy and physics because of the excitement of exploration those role models exemplified.  And it is with a certain sadness that they note that it has been almost 40 years (December 19, 1972) since a human being walked on the surface of the Moon.  Like all things, the nature of Man’s relationship with space has changed, as perhaps most iconically exemplified at the moment by the planned termination of the U.S. Space Shuttle program. 

Today, the most pressing concerns for outer space are not its exploration as much as they are its commercial uses.  There are the numerous satellites that have been placed in orbit over the years to provide telecommunications services, resulting in the need to manufacture uplink and downlink terminals, transponders, mobile satellite telephone units, direct-to-home receivers, and other components in addition to the satellites themselves.  There is the use of satellite imagery in the fields of agriculture, geology, forestry, biodiversity conservation, military intelligence, and others, as exemplified by the GeoEye, DigitalGlobe, Spot Image, RapidEye, and ImageSat International projects.  There are the proliferation of satellite navigation systems in the form of global positioning systems in the United States, and the development of similar systems in Russia (GLONASS), China (Compass), and Europe (Galileo).  There is the current development of high-altitude platforms, which are quasi-stationary aircraft that may be deployed at altitudes of 17 – 22 km to provide services for several years.  There are even examples of space tourism as exemplified by Dennis Tito’s tourist flight to the International Space Station in 2001; several companies are now planning “economical” suborbital flights to altitudes of some 100 – 160 km so that tourists can experience the weightlessness and striking views of being in outer space. 

But where is outer space exactly?  The question is not an idle one and can have numerous effects because it defines what law is applicable:  is it the law as embodied in one of the five U.N. treaties related to space or is it a national aviation or other law of the sovereign territory “below” the relevant location?  Historically, the property law was deceptively simple:  “Cuius est solum, eius est usque ad coelum et ad inferos” (“the owner of the land owns everything up to the sky and down to the center of the earth”).  The simple idea that each of us owns all of the airspace above our homes is a quaint one but hopelessly unrealistic in modern times. 

As a principle of private ownership, usque ad coelum was soundly rejected by the U.S. Supreme Court in United States v. Causby when Thomas Lee Causby complained that flights of military aircraft at an altitude of 83 feet to a nearby Greensboro airport during World War II were so frightening to his chickens that he was forced to abandon his farm business.  The Supreme Court held that the airspace was a “public highway,” and that while a landowner might be entitled to compensation from the government, he has no right to prevent use of the airspace.  A copy of the decision can be found here.

The doctrine retains relevance in the form of national rights.  The 1944 Chicago Convention on International Civil Aviation asserts that “[e]very state has complete and exclusive sovereignty over airspace above its territory,” leading on occasion to international disputes when aircraft intentionally or accidentally enter another country’s airspace.  A copy of the Convention can be found here

But  just as Causby was frustrated by national rights superseding his private rights, so too nations may be frustrated by having a limit to the extent of their airspace rights.  The Outer Space Treaty rejects national rights over outer space, declaring that “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind.” 

So far, there is no internationally recognized limit where national airspace ends and outer space begins.  When the topic has come up in past international discussions, it has generally been decided that there was no current need for a hard definition.  Indeed, the topic was again one focus of the 50th session of the Legal Subcommittee of the U.N.’s Committee on the Peaceful Uses of Outer Space last week.  During that session a number of potential ways of defining outer space were considered, including both physical definitions and functional definitions.  The various definitions that have been floated over the years appear to be converging around an altitude of 100 km, particularly at the von Kármán line where the Earth’s atmosphere becomes too thin for aeronautical purposes.  It is at the von Kármán line that a vehicle would have to travel faster than orbital velocity to derive adequate aerodynamic lift from the atmosphere to support itself. 

It is worth noting that even at altitudes far greater than 100 km, there are already disputes.  The geostationary orbit has a period equal to the Earth’s rotational period so that satellites placed in that orbit appear stationary relative to the Earth.  It occurs directly above the geographic equator at about 36,000 km.  In 1976, eight countries through which the equator passes (Brazil, Colombia, Ecuador, Indonesia, Congo, Kenya, Uganda, and Zaire) signed the Bogota Declaration to assert their claim that the geostationary orbit is a “scarce national resource” that is not a part of outer space.  Since the Declaration was signed, other equatorial nations have asserted claims of ownership to their overhead geostationary arcs.  Thus far, the Declaration has been ignored by nations wishing to place satellites in the geostationary orbit, and while the issue of the Bogota Declaration is repeatedly discussed at the U.N., it has been given no legal recognition.  A copy of the Declaration may be found here.

Even though only a handful of humans have been in outer space, it has always and still holds a fascination for us.  Just as we do, our ancient ancestors looked up at the sky — the Sun, the Moon, the stars — and saw reflections of every aspect of our humanity, whether it be romance or war.  To me, the legal issues of how we deal with outer space are, in their own way, just as fascinating as the scientific ones.

Eppur Si Muove!

The story alluded to by my title is apocryphal, but the full account of Galileo’s trial before the Holy Roman Inquisition is a matter of historical truth. 

Although he is sometimes mistakenly credited with the invention of the telescope, Galileo’s real contribution is to have used telescopes for celestial investigations.  He was about 40 years old when he learned of the Dutch invention and decided to build his own, pointing it at the moon, the stars, and the Sun.  He was the first to observe sunspots and their movement as they revolve with the Sun, conclusive evidence that prior teachings that the Sun was a perfect unchanging sphere were incorrect.  He was the first to see the moons of Jupiter and to witness their revolution around that planet, calling into question prior teachings about the perfection of the planets.  And perhaps most signficantly, he observed the crescent of Venus. 

This was critically important because the fact that Venus has celestial phases when observed from the Earth implies motion about the Sun.  A heliocentric model of the solar system in which the planets revolve about the Sun had been put forth many decades earlier by Nicolaus Copernicus.  Galileo had expressed private support for that theory as early as 1597, but remained hesitant about making his views public because of the consequences Copernicus had faced:  “I have not dared until now to bring my reasons and refutations into the open, being warned by the fortunes of Copernicus himself, our master, who procured for himself immortal fame among a few but stepped down among the great crowd.”  It was Galileo’s observations with the telescope that finally emboldened him to make his views public.  After all, anyone could take a telescope like he did, point it at the sky, and see the same conclusive evidence with their own eyes. 

Galileo’s publications began to assert the heliocentric nature of the solar system openly, notably in his Letters on the Solar Spots, which attracted the first attack from the Church.  Only the Aristotelian model could be correct, the Church asserted, because a heliocentric model was contrary to scripture.  Galileo’s writings were brought to the attention of the Holy Roman Inquisition by members of the clergy.  Things escalated, with more pressure being brought against Galileo to recant as he resolutely maintained that they should simply take a telescope and look for themselves rather than be shackled by doctrinal belief. 

In 1623, Galileo had six private audiences with the Pope, resulting in a compromise:  Galileo would write a book, presenting both views — hauntingly familiar to the demands we see today to present “both sides” of an issue even when there is no real scientific controversy.  His book, Dialogue Concerning the Two Chief World Systems, would be fateful.  Written as a dialogue among three people, Galileo cast Simplicio, a pompous fool, in the role of defending the Aristotelian model and presenting the view of the Pope. 

He was arrested and tried for heresy by the Inquisition.  Under threat of execution, he recanted the Copernican theory so that he could live the remainer of his life under house arrest.  But he is said to have uttered “Eppur si muove!” when he was sentenced — “And yet it moves!”  There is no real historical evidence that he said it, and the reality is that he was very probably broken by the experience.  Nonetheless, we romantically admire the defiance of a man with such conviction in the conclusions of his observations that he would maintain them against action so strong that it took his persecutors almost four hundred years to finally acknowledge his mistreatment, still centuries after his ideas became commonplace. 

While of course not rising to the level of the Galileo affair, the Commonwealth of Virginia has recently been engaging in activity that raises far too many questions about its motivation.  The Attorney General of Virginia, Kenneth Cuccinelli, was unsuccessful this week in his attempt to subpoena records from the University of Virginia as part of a fraud investigation into a grant supporting the research of Michael Mann.  Mann is a climate researcher who has — for reasons that can only be characterized as bizarre — become a focal point of efforts to discredit research that suggests human activity is causing global climate change.  I previously wrote about Mann and his exoneration in the “Climategate” allegations here.

The principal reason that the actions of Virginia are concerning is that the Attorney General has such little basis to support his actions, raising significant questions about his true objectives.  In April, he issued a civil subpoena demanding that the University of Virginia produce a swath of documents relating to Mann’s receipt of funds to support his research, including ten years of correspondence involving Mann and more than 40 other climate scientists.  The University resisted, noting the chilling effect that can result on academic freedom when private correspondence is baselessly subject to government review. 

There is controversy over Mann’s conclusions.  A small amount of this controversy is scientific, questioning his methodology, and deserves to be explored.  Unfortunately, most of the controversy surrounding Mann’s work has been generated by nonscientific interests who appear simply to dislike his conclusions and who are willing to intrude on the scientific process in a way that can inhibit scientists from publicizing their ideas. The proper avenues for resolution of the scientific controversy are the time-honored approaches that scientists have developed — publication, peer review, and debate.  Academics expect their research to be subjected to that scrutiny — and that scrutiny is ideally intense — but they also need to be able to interact with others in exploring initial thoughts, suspicions, and hypotheses without fear that every incomplete idea may be demanded by the government and examined out of context.  

In the abstract, scientific misconduct is a legitimate concern, but there still needs to be something that can be identified to justify an investigation beyond the fact that some research is controversial.  Otherwise, and as amici who filed briefs in the case correctly noted, “[s]eeking to avoid the stigma (not to mention legal costs) involved in a fraud investigation, professors would hesitate to research, publish, or even teach on potentially controversial subjects.”  And controversy is, in many ways, what drives scientific innovation fastest. 

Monday’s ruling by Judge Paul Peatross notes that “[w]hat the Attorney General suspects that Dr. Mann did that was false or fraudulent in obtaining funds from the Commonwealth is simply not stated….  [I]t is not clear what he did that was misleading, false or fraudulent in obtaining funds from the Commonwealth of Virginia.”  The complete ruling can be read here.   The Attorney General now has the opportunity to reframe his subpoena and articulate specific allegations if they exist. 

It is often noted that Galileo died the same year that Isaac Newton was born.  Newton, of course, would go on to invent a considerably better telescope design and to develop the theory of gravitation, which decisively confirmed the Copernican model of the solar system that Galileo espoused.  How our understanding of global climate change will develop in the years to come remains unclear.  But one thing is certain:  it will not advance at all if scientists are intimidated into suppressing their conclusions.

My Very Excellent Mother Just Served us Nine … What?

When I was growing up and learning about the planets of our solar system, many children used a mnemonic like the title of this post to remember the order of the planets, finishing it with something like “Pizzas” or “Pies.”  It was something we all accepted as part of the natural order of the universe — that we live in a solar system that has nine planets, with us on the third. 

But on August 24, 2006, the International Astronomical Union (“IAU”) finally provided a formal definition of a planet and poor Pluto did not make the cut.  There are only eight planets that orbit our Sun.  Some of the reaction to the change was strongly negative.  Petitions were organized online to implore the IAU to reconsider its decision and to reinstate Pluto to its “rightful” place as a planet.  Protests were held, with people marching with placards proclaiming that “Size Doesn’t Matter” and wearing T-shirts announcing their “Protest for Pluto.”  The State of New Mexico — where Clyde Tombaugh was working when he discovered Pluto in 1930 — passed a resolution declaring that Pluto will always be considered a planet when in the skies of New Mexico.  Illinois — where Tombaugh was born — did the same thing a couple of years later.  A resolution was introduced in California denouncing the IAU for “scientific heresy.”  And many astronomers I know, who remembered with deep fondness how they discovered the sky as children, felt a sentimentally wistful loss at the change.  Even now, four years after the IAU decision, protests are still occasionally being held. 

It is heady stuff, whether Pluto is rightfully part of the club of planets or not. 

The decision of the IAU is one that emblemizes how brutal science rightfully is as new information and understanding is developed.  Old ideas that no longer fit with modern evidence and knowledge are to be summarily executed in favor of concepts that do comport with what we have learned through our investigations into nature.  And even though some astronomers felt some nostalgia, they also know that this ruthlessness is a necessary part of the scientific method that they embrace. 

I was reminded of Pluto — and of both the strict demand that science has for evidence and its willingness to reject old ideas wholesale — when I read the decision in Perry v. Schwarzenegger, the federal court decision from last week holding that prohibiting same-sex marriages violates both the due-process and equal-protection clauses of the federal Constitution. 

One of the strongest reasons for opposition to same-sex marriages is rooted in the traditions of this and other countries that marriages are between one man and one woman.  Those traditions very much reflect a moral and often religious view of what marriage is, and a judgment that homosexuality is “wrong.”  But as Thomas Jefferson famously noted in his 1802 letter to the Danbury Baptists, the United States seeks to maintain a “wall of separation” between church and state through the First Amendment to the federal Constitution.  As the judge in Perry noted, a “state’s interest in an enactment must of course be secular in nature.” 

And so the judge — who interestingly had difficulty with his original appointment by Ronald Reagan because he represented the U.S. Olympic Committee in prohibiting use of the term “Gay Olympics” — demanded that there be some evidence that a legitimate state interest is promoted by limiting marriage to opposite-sex couples.  Like the IAU and Pluto, it would not be enough that there was a long history of such a limit, and the evidence had to be real and solid. 

There are many reasons that have been suggested by those who are opposed to same-sex marriage and that were considered in Perry.  The interest of the state in promoting procreation.  The commonly held belief that children’s emotional development is most stable when raised in a household with both a father and a mother as role models for each sex.  The risk that opening up marriage to same-sex couples will erode its value, even in perception, of providing stability for heterosexual couples.  If true and supported by evidence, it is difficult to argue that these are not legitimate interests of the state. 

But that is where the proponents of a traditional definition of marriage fell short.  Much evidence from social scientists was presented during the trial that these reasons are not supported by evidence — that children develop emotionally with as much strength when raised by same-sex or opposite-sex households and that relaxation of restrictions on the physical characteristics of parties who marry is unlikely to erode the respect that heterosexual couples have for marriage.  A strong analogy was made to the 1967 decision of the Supreme Court in Loving v. Virginia that miscegenation laws banning interracial marriage were unconstitutional. 

It is widely accepted that the parties wanting to preserve the traditional definition of marriage did a poor job in presenting their case during trial, even as the judge nudged and implored them to do better and to present their case more persuasively.  They didn’t call nearly as many witnesses as the other side and the witnesses that they did call were less well-credentialed and credible.  There is still a significant belief that some of those interests articulated in support of limiting marriage to opposite-sex couples do actually have evidence among social scientists.  And no matter which side one falls on the issue, we should all acknowledge one fundamental fact:  the contrary evidence deserves to have been presented in its strongest and most persuasive form.  It is when the strongest possible evidence is considered and still found to be lacking — just as the IAU did with Pluto — that we have the greatest confidence in decisions, particularly when they seem to run counter to tradition and intuition.

The full opinion in Perry can be read here.

Sore Fear Upon Men

For the last month, the attention of sports fans around the world has been focused on South Africa as the soccer teams of 32 nations competed for the World Cup.  And yesterday it concluded:  Spain is the victor because of an extra-time goal by Andres Iniesta and massive celebrations continue today not only in the large cities of Madrid and Barcelona, but also in the small hamlets and villages of rural Spain. 

It was an exciting game, and one that even the cosmos seemed intent on recognizing.  Fourteen minutes before the final game began, the umbra of a solar eclipse touched down on the Earth and lifted off just around the time the game concluded.  It was as though, for a few short hours, the universe itself took an interest in the affairs of men and settled in to enjoy the game. 

There is perhaps no astronomical event as portentous as a solar eclipse.  And yesterday’s was special not only because it coincided with the World Cup final, but also because of the remote path of the umbra.  Travelling over the south Pacific, the eclipse was visible from very few land masses, all of them remote.  Indeed, tiny and mystical Easter Island, famous for its haunting stone moai and described frequently as the most remote inhabited place on the planet, was a particular focus for the eclipse.  Thousands of people made their way there just to experience being within the eerie totality of a solar eclipse while standing among those ancient stone statues. 

The last time a total solar eclipse was visible from Easter Island was almost 14 centuries ago, probably before the island was even settled by Hotu Matu’a.  I am unable to say exactly when Polynesian explorers settled on Easter Island — radiocarbon dating of the Tahai complex suggests a date of 690 ± 130 AD, although it is possible Tahai was not constructed until a couple of hundred years after settlement of the island. 

But I can say with certainty when that previous solar eclipse occurred on Easter Island.  It was on September 24, 656 AD.  And those thousands of people who arrived on Easter Island took confidence in the fact that the eclipse would begin at 12:41 PM local time.  Such is the level of understanding that astronomers have about the movements of the Earth, Sun, and Moon.  We almost take for granted these days that we know the precise times the Sun or Moon will rise or set — for any day of any year and for any location on the planet.  But what an amazing feat it is to have such predictive capabilities. 

The precision with which astronomers can provide information about such positions makes for evidence that can be used in court that has indisputable reliability.  Such information is exact and has been used in numerous cases to sway a factfinder to a conclusion about a crime. 

It was famously used by Abraham Lincoln when he was an attorney representing Duff Armstrong in a murder case.  Although Lincoln was mostly a civil attorney, he did take a small number of criminal cases, and had taken this one — pro bono — after being implored by Duff’s mother, the recently widowed wife of his old friend Jack. 

Duff and a second man named Norris had been accused of killing James Metzker during a drunken brawl sometime in August, 1857.  The case seemed solid and unwinnable.  There was, after all, an eyewitness to the event, a man by the name of Charles Allen.  One can easily imagine the tension in the courtroom as the man who would later issue the Emancipation Proclamation to lead to the end of slavery stood and cross-examined the eyewitness. 

Lincoln proceeded with a series of questions designed to elicit testimony about how clearly Allen could see the altercation. How bright was the moon?  Where was the moon?  Are you absolutely certain there was enough moonlight that you could see clearly?  These are perhaps the sorts of questions he asked.  When Lincoln then introduced an almanac showing that the moon could not possibly have been overhead as Allen testified, a “roar of laughter” arose among the spectators and some of the jurors.  The key witness in the trial had been discredited and the jury unanimously voted to acquit Duff with deliberations that lasted less than an hour.

Today, astronomers are still called as expert witnesses from time to time.  There are companies formed by astronomers that will calculate the position of the sun or moon at a particular location on a particular day to be used as evidence.  Could the driver really have had the sun in his eyes when he was driving west down Elm Street at 4:38 PM on October 12?  In a case in the late 1970’s, an astronomer analyzed a photograph of a woman and her dog to establish from the dog’s shadow that it could not have been taken when she claimed, resulting in her conviction for perjury.  In any case where the state of natural lighting is relevant to the case, astronomers are able to provide absolute and inarguable evidence of the positions of these celestial bodies. 

Recently, such “forensic astronomers” have turned their attention to artistic endeavors, looking at paintings, photographs, and poetry in which celestial objects appear.  Ansel Adams’s photograph titled Autumn Moon, we now know, was taken at 4:14 PM on December 28, 1960.  Van Gogh’s Moonrise must have been painted on July 13, 1889.  And just last month, astronomer Don Olson settled a debate about what celestial object Walt Whitman was referring to in a poem that appears in his collection Leaves of Grass — it was not the 1833 Leonid meteor shower as many supposed, and it was not an 1859 fireball that others had thought, but was instead the Great Comet of 1860. 

I am personally disappointed that Spain won the World Cup since I was rooting for The Netherlands, but I do hope the cosmos enjoyed its visit and the game.