Tag Archives: Pentagon Papers

NSA Leak: Why not the Times?

By Christopher B. Daly

Since the disclosure of the NSA leaks story, a fair amount of media commentary has focused on the thinking of the self-identified leaker, Edward Snowden, who got access to secrets by working for a government contractor. Many have compared him to Daniel Ellsberg, who got access to secrets by working for a government contractor, then divulged the Pentagon Papers in 1971 to the New York Times. 

Some wonder why Snowden chose to cooperate with Glenn Greenwald (who is a lawyer/activist/blogger/freelancer) rather than a traditional media heavyweight such as the New York Times. Some of the concern is misplaced, I believe, since Snowden also shared his NSA leak with the estimable Barton Gellman of the Washington Post.

As far as the Times goes, the newspaper’s own Public Editor, Margaret Sullivan, aired out the question in her most recent posting.

I think it is worth recalling some of the history of the Pentagon Papers case (which you can read at greater length in chapter 11 of my book, Covering America.) By his own CA cover finalaccount, Ellsberg had a political goal — ending the U.S. war in Vietnam. To that end, he first tried to leak the classified documents to members of Congress, on the theory that they could use their congressional immunity to read the papers aloud on the floor of the House or Senate. Because of their immunity, they could not be prosecuted for anything said as part of the proceedings of Congress and their remarks would be on the public record.

When the office-holders balked, Ellsberg turned his thoughts to the media. There I think it is indicative that he did not approach the Times as an institution. Indeed, the Times — in 1971 — was not well known for challenging the federal government. Instead, Ellsberg was targeting an individual journalist whom he thought he could trust: Neil Sheehan.

Ellsberg and Sheehan had a bit of history. They had met when Ellsberg was serving in the Marines in Vietnam and Sheehan was working for United Press in its Saigon bureau. Ellsberg had a sense that Sheehan was a skeptic about the war. Later, Sheehanimgres-1 joined the Times, and he was working as a reporter in the Times Washington bureau in 1971. Under the terms of employment for Times reporters, he was supposed to keep his political views to himself. On March 28, 1971, Sheehan wrote a lengthy multi-book review for the Times Sunday Book Review in which took seriously the idea that there should be war-crimes trials for the U.S. policy-makers who kept us in Vietnam. When Ellsberg read that review, he knew he had found the right journalist.

Three months later, Sheehan wrote the first front-page article in the series that became known as the Pentagon Papers.

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Wikileaks defendant gets a break

By Christopher B. Daly 

Among the many public services rendered by the New York Times, one is the coverage of the “Wikileaks case” being prosecuted in a U.S. court martial against Pfc. Bradley Manning. The case is taking place at Fort Meade, Maryland, which is about midway between Washington and Baltimore. That means that New York Times reporter Charlie Savage (formerly of the Boston Globe) has to

Welcome!

Welcome!

schlep out there every day when hearings are held and submit to all the rigamarole of entering a U.S. military base and the extra challenges of covering a court martial.

Because Savage is there and because he is well-versed in the law of the case, Savage is alert to the meaning of a lot of the pre-trial maneuvering. In today’s story, he informs us that Bradley caught a rare break this week: the judge ruled that the government will have a higher burden of proof than had originally been thought. The issue involves some arcane provisions of the Espionage Act of 1917 (as amended), but the judge’s ruling on the burden of proof goes right to the heart of the case. Put simply, it comes down to this:

When Private Manning leaked all those secret files to WikiLeaks (and he has already admitted doing so), did he have an intent to harm the United States? Did he have a “reason to believe” that the leaks would help a foreign enemy of the U.S.? And can the government prove that he had such a state of mind?

That really tips the balance in the defendant’s favor, because one can imagine a whole host of intentions that a leaker could plausibly have that would fall short of the “aiding the enemy” standard. Like Daniel Ellsberg — the leaker in the Pentagon Papers case — Manning could have been acting with an intent of changing U.S. war policy, or simply hastening an end to a war he considered unjust.

The government side, including military lawyers, had wished to proceed to trial under a different set of rules. Here’s how Savage paraphrased the government’s position:

A military legal spokesman argued that the decision may make little difference because the judge previously ruled that Private Manning’s motive — whether he thought of himself as trying to help society — was irrelevant to whether he intentionally broke the law. The fact that many of the documents were classified, he said, was a reason for Private Manning to believe that their disclosure could cause harm.

In other words, the classification system is always correct and any violation of its rules is, on its face, a crime. That, of course, is an invitation to those in power to cover their asses in perpetuity by classifying any information that they don’t want to see the light of day. In that case, we would never learn any of the disclosures that came to light through the Pentagon Papers or  Wikileaks. We, as citizens, could not even debate whether our elected officials are doing a good job, because we would have no evidence to work with.

It’s not an overstatement to say that, no matter what happens to Manning in the end and no matter how we feel about the wisdom of the war in Iraq, we should all thank the Times for looking out for the rights of all of us.

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Extra credit:

Savage’s story also gives us a glimpse of the conditions under which the reporters covering the trial have to work:

Military authorities, meanwhile, said that while court was in session they would ban cellphones and air cards and turn off the wireless Internet in a media center where reporters and activist bloggers watch a closed-circuit feed from the courtroom. The steps were a response to the release on the Internet by the Freedom of the Press Foundation of a bootleg recording of Private Manning’s statement in February. Colonel Lind emphasized that recordings were not allowed at any court-martial proceeding.

“To date I have not ordered persons to be screened for phones and recording devices,” she said. “I hope I won’t have to. I trust you will all follow the rules and we will not have any additional violations of the court’s rules.”

Got that?

 

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Pentagon Papers, at 40

By Chris Daly

As a public service, I am once again making public my history of the Pentagon Papers case. On the 40th anniversary of the publication of the first story about the “massive leak” of top-security government documents, it is a good time to brush up on the issues, the characters, and the law involved in this constitutional crisis. The case remains a landmark and remains as relevant as the latest headline about WikiLeaks.

The following is an excerpt from my book, which is now due out in February. Until then, here is the latest draft. If you have corrections/suggestions, please leave them in the comments.

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From COVERING AMERICA: A Narrative History of a Nation’s Journalism

(Forthcoming, UMass Press)

By Christopher B. Daly

VIETNAM (Part 3): The Pentagon Papers

By the late 1960s more and more people were asking new and troubling questions about the war in Southeast Asia. No longer was the issue, How are we doing in Vietnam? Now, the question was, What are we doing in Vietnam? Even the secretary of Defense had questions. Robert McNamara, the ultimate whiz-kid, the brightest of the best and brightest, was determined to get answers. He fell back on the tools he knew best: data, reason, and analysis. In 1967, he commissioned an internal study of U.S. involvement in Vietnam, tapping vast archives of government documents and a large team of military veterans, historians, security experts, and analysts. Among those recruited to work on the secret project–known by its nickname, the Pentagon Papers–was a former Marine with a Harvard doctorate named Daniel Ellsberg.[i]

 

Ellsberg, an expert in decision-making theory, was a civilian working at the Rand Corporation, a private think-tank that did a lot of analytical work for the U.S. government, especially the Defense Department. While he was working on the Pentagon Papers, Ellsberg underwent a profound personal conversion about he war–from enthusiastic hawk to passionate dove. Part of the reason for this change lay in the Papers themselves. In the mountains of documents (which he read in their entirety, even in areas where he was not tasked to contribute) Ellsberg came to believe that the problem was not the one he expected–that presidents lacked solid information about Vietnam. They had plenty of information. The problem was, those presidents had all chosen to lie about it. At the same time, Ellsberg was meeting leaders of the growing and increasingly vocal antiwar movement, who were posing questions that he found troubling: What right does the U.S. have to intervene in the lives of far-away peoples who pose us no threat? What is the moral justification for planning a war in which the deaths of Asian people are not even a factor?

In his new-found determination to help stop the war, Ellsberg began to think that perhaps the Pentagon Papers themselves could make the difference. If the American public only knew what was in that study, they would see what he had seen – that Vietnam was a disaster, one that president after president had led us deeper and deeper into, always while claiming that victory or “peace with honor” was just around the corner. With the idea of divulging the study’s contents, he began secretly photocopying in October 1969. It was a daunting task. With help from a friend, Ellsberg developed a system. He put as many pages as he could carry in his briefcase at Rand’s office in Santa Monica, California. At the end of the day, he would wave to the security guard and leave with the briefcase, then head to another friend’s advertising agency, where he had permission to use the Xerox machine all night. That meant that Ellsberg had to lay each page face-down on the glass plate, push a button, wait, remove the original, replace it with another, push the button again, and so on. Each night he would wrap up, catch some sleep, and return that night’s batch of documents to Rand.  “I took it for granted that what I was doing violated some law, perhaps several,” Ellsberg recalled years later. As a contributor to the study, Ellsberg had a top-security clearance, and he was authorized to have access to the set of the Pentagon Papers at Rand. Whether he had any right to make copies and distribute them remained to be seen.[1]

Aside from the legal issues, copying the Pentagon Papers was a physical challenge. The study was massive. Each set ran to forty-seven volumes, about 7,000 pages in all. Just fifteen official copies had been made, and most of those were stored in a vault at the Pentagon. The whole thing was classified “TOP SECRET-SENSITIVE” and bore warning stamps on the front and back covers and on every page. Under the protocols of the federal classification system, a document must be classified at the highest level of its most sensitive contents. Thus, if a volume of the Pentagon Papers consisted of a mix of analysis written by a historian buttressed by secret diplomatic cables or orders to units in the field, then the whole volume was treated the same as its most sensitive part. As Ellsberg well knew, the Pentagon Papers were packed with secrets–everything from the fruits of U.S. spy agencies to private exchanges between world leaders, from plots to carry out coups to estimates of other countries’ intentions.

In terms of domestic U.S. politics, the Pentagon Papers also posed a threat. Only a handful of people had read the whole study in 1969, but Ellsberg was one of them.[2] He saw document after document proving that one American president after another had lied to the American people by telling them that the U.S. role in Vietnam was minimal and successful, when in fact that role was growing and stalemated. The study also cast major doubts about the U.S. role in the Tonkin Gulf Incident of 1964, which had provided the justification for the congressional resolution authorizing a U.S. combat role in Vietnam. The Pentagon Papers provided a detailed, damning indictment of a generation of policy and policy-makers about a war that was still very much in progress. It was never meant to be read by more than a couple of dozens of people at the very summit of power. What Ellsberg was contemplating was, according to a leading expert, “probably the single largest unauthorized disclosure of classified documents in the history of the United States.”[ii]

As Ellsberg considered his options in late 1969 and early 1970, his first thought was to try releasing the Papers through a member of Congress. He hit upon Sen. J. William Fulbright, the Arkansas Democrat who chaired the Foreign Relations Committee and who was the most prominent congressional critic of U.S. involvement in Vietnam. Ellsberg also approached Senators McGovern, Gravel, and Mathias, hoping that one of them could use his congressional immunity to introduce the Papers into the Congressional Record. In the end, after taking more than a year, they all found reasons to decline. So, Ellsberg went to his fall-back position and thought about giving a set of the Papers to the press. In his mind, there was one obvious choice, one newspaper with the resources, the sense of history, the track record: The New York Times. And at the Times, there was an obvious choice: Neil Sheehan. Sheehan, who had been the Saigon bureau chief for UPI in the early 1960s, knew as much about Vietnam as anyone. He had since joined the Times, where he was a Washington correspondent, still very much involved in covering the war. One thing that impressed Ellsberg about Sheehan was a piece Sheehan had recently written for the Times’ Book Review on the subject of war crimes and the application of war crimes doctrine to U.S. actions in Vietnam. Ellsberg was struck by the passion Sheehan showed in his writing, the urgent desire to end the fighting and bombing.

So, late in the evening of March 2, 1971, during a visit to Washington, Ellsberg called Sheehan at his home. Sheehan invited him over, and they stayed up all night while Ellsberg described the mammoth McNamara study and drew Sheehan into the plan. The journalist could not promise that his newspaper would use it just as Ellsberg wished, but Sheehan himself was eager to see it and optimistic about publishing. What happened next remains a bit shrouded. Sheehan, in keeping with the reporter’s code of omerta in protecting confidential sources, never identified Ellsberg as his source and has never explained in detail how he acquired the Papers for the Times. In all his public statements, he has said simply that he “got” or “obtained” the study – which is true as far as it goes. According to Ellsberg, it was more like a dance.[iii]

Around this time, Ellsberg left California for Cambridge, to begin a fellowship at MIT, and he continued making more photocopies of the Pentagon Papers.[3] Ellsberg assumed that the FBI was watching his apartment, on a side street just off Harvard Square, so he kept his set of the Papers nearby, in a box at the apartment of his brother-in-law. While Ellsberg organized the contents of the box, his wife, Patricia, took batches to several copy shops in Harvard Square. These shops had fairly powerful, commercial copiers, but it still took a long time; all the while, Ellsberg had to wonder what might happen if a clerk at a copy shop read some of the contents and decided to drop a dime into a pay phone and call the authorities to see if they’d like their secrets back.

Ellsberg and Sheehan continued to discuss the ground rules for a handoff of the giant secret study. Oddly, perhaps, one issue they did not discuss was confidentiality. Ellsberg just assumed that Sheehan would protect his identity, but nothing was ever spelled out. Of greater concern to Ellsberg was the political goal of stopping the war. To that end, he wanted a commitment that the Times would definitely publish and that the newspaper would include in its reports some of the actual documents contained within the Pentagon Papers. As a mere reporter, Sheehan was in no position to make promises that would bind the newspaper, but he pledged to do his best. Ellsberg met him halfway, saying Sheehan could inspect the Papers[4] and take notes on them, to give Sheehan the evidence he would need to try to persuade his superiors at the Times. On that basis, Ellsberg let Sheehan into the apartment and gave him a key so he could come and go as he went about the tedious business of reading and taking notes. Sheehan asked for photocopies, but Ellsberg was not ready yet to take that step. After a few days, Sheehan headed back to Washington to begin the process of pitching the idea to his editors.

Not too long after that, it appears that, unbeknownst to Ellsberg, Sheehan returned to Cambridge, this time with his wife, the journalist Susan Sheehan. On a weekend when they knew that Ellsberg would be away, the Sheehans checked in under fake names to a hotel near Harvard Square. Using the key to the apartment that Neil had held onto, the Sheehans (according to Ellsberg) let themselves in and removed an entire set of the Papers. At some point, Sheehan used a pay phone to call the Boston bureau of the Times and asked the local correspondent, Bill Kovach, for some of the paper’s money. Kovach, in turn, called New York and got $1,500 wired to him.[iv] The Sheehans took the study to a nearby copy shop and got a complete duplicate made. Then, they returned the first set to the apartment and slipped out of town.[5]

After several weeks of examining the Papers in Washington, Sheehan was making headway in getting the newspaper’s top executives to commit. The most important figure on the news side was the managing editor, A.M. “Abe” Rosenthal, who was no dove when it came to the war in Vietnam. Rosenthal, however, determined that the project was potentially significant and took over close supervision himself. He had Sheehan’s photocopied set brought to the Times’ newsroom on West 43rd St.  in Manhattan, but soon thought better of it. He did not want the FBI storming that hallowed journalistic ground to seize files. Instead, Rosenthal ordered the establishment of a separate command post in several suites at the midtown Hilton Hotel. Everyone involved (which ultimately ran to about seventy-five reporters, editors, clerks, and design personnel) was ordered to keep mum about “Project X.”[v] They had reason to be careful.

The set held by the Times represented an unprecedented breach of the national classification system, and anyone in possession of it could face criminal charges, not only of stealing government property but perhaps espionage or, ultimately, treason. Indeed, that was the opinion reached by the Times’ long-time law firm, Lord Day & Lord. Senior partner Louis M. Loeb objected to the idea of publishing leaked military secrets in wartime, which he considered irresponsible and unpatriotic, and he warned that the government would be sure to prosecute the newspaper and its top executives. He urged the editors to return the Papers to the government.[6] Sulzberger decided to listen instead to the company’s in-house counsel, Jim Goodale, who was more sanguine about staying out of jail. With that question still unresolved, Sulzberger decided to let the project move forward but to proceed carefully. By now, he had eight years under his belt as publisher, and he felt a lot more confident than he had in his first year, when JFK had tried to bully him into transferring Halberstam out of Saigon. Still, confronting the president of the United States would be a challenge.

In one room at the hotel, Sulzberger assembled the newspaper’s lawyers to help him decide whether to publish anything at all. They argued over issues of sedition, corporate liability, and professional responsibility. In another room, he assembled a select group of the paper’s senior editors and top reporters to wade into the documents and help him determine what to publish. It was tough going in both rooms. In the roomful of journalists, the Papers were providing dozens of leads and tantalizing revelations. But the report as a whole was so vast that it would take a long time to find a story line in there. What was the upshot? What was the headline? Week after week, debates raged in both rooms. Was the Times about to break the law by giving away classified information during wartime? Would the government bring a charge of treason? If so, could the paper survive? Finally, the stories were ready.

It all came down to Punch Sulzberger. It was time to say yes or no, time to put all his chips–the paper he loved, his family’s legacy, the good of his country–on the table. His answer was yes. So, on Saturday, June 12, 1971, while President Nixon was dancing in the White House at the wedding of his daughter and enjoying what he called the happiest day of his presidency, the typesetters and pressmen at the Times began printing the stories that would bring about a first-order constitutional crisis.[7]

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Early on June 13, the first edition of the Sunday New York Times began to circulate. In Harvard Square, after seeing a late movie, Daniel Ellsberg went to an all-night news kiosk and bought a couple of copies. As he walked home, he smiled. In 24-point type over the four columns on the upper right of Page 1, ran this headline:

VIETNAM ARCHIVE: PENTAGON STUDY TRACES

3 DECADES OF GROWING U.S. INVOLVEMENT

The lead article, written by Neil Sheehan, said that a “massive” study commissioned by Defense Secretary Robert McNamara showed that four presidential administrations “progressively developed a sense of commitment to a non-Communist Vietnam, a readiness to fight the North to protect the South, and an ultimate frustration with this effort to a much greater extent than their public statements acknowledged at the time.” The story went on in that vein–not exactly a bombshell, more like the pebble that starts the landslide. The Times promised more stories and more documents in the following days.

The stories caught the White House off guard. In all the months of deliberations at the Times, no one had contacted the White House for comment, so the initial story came out of the blue. At first, the president decided to do nothing. In telephone calls he had on Sunday with Gen. Alexander Haig and Secretary of State William Rogers, Nixon said he had not even read the Times story, and he seemed more interested in the political impact than in the security breach, although he did call it “treasonable action on the part of the bastards that put it out.”[vi] To Nixon’s mind, the important thing seemed to be that the series criticized Democrats–Kennedy and Johnson–and not him. Then, his national security adviser, Henry Kissinger, went to work on him. Kissinger, even though he was one of the most astute and prolific leakers in history, argued that the conduct of U.S. diplomacy depended on plugging the leaks. Then he played his trump card, warning Nixon that if he tolerated this massive security breach, “it shows you’re a weakling.”[vii] That did it. If there was one thing Nixon feared, it was vulnerability. So, he began to weigh other options.

On Tuesday, June 15, 1971, government lawyers went into federal court in Manhattan and asked the court to enjoin the Times from publishing anything further about the Pentagon Papers. That was a momentous step. It was the first time since the adoption of the U.S. Constitution that the federal government had tried to impose “prior restraint” on a newspaper, based on grounds of national security. Not since the British crown ruled over the land had a publisher of a newspaper been told by the government in advance what it might or might not print. That was the essence of the constitutional crisis. Did the president have such power? If so, the Constitution did not grant it explicitly. From the newspaper’s point of view, the issue was the plain meaning of the First Amendment, with its sweeping ban on abridging the freedom of the press. From the president’s point of view, the issue was his duty as commander in chief to safeguard the nation by keeping its military, intelligence, and diplomatic secrets, particularly in time of war. Citing the Constitution, both sides prepared for a legal showdown.

At the outset, the case did not look promising for the newspaper. The matter was assigned to Judge Murray Gurfein, a veteran of Army intelligence in World War II and a Republican who had just been appointed by Nixon himself.[8] It was Gurfein’s very first case as a judge. After a brief hearing, Gurfein granted the government’s request for a temporary restraining order and set a hearing for Friday. Significantly, the Times obeyed the court order and suspended the series about the Pentagon Papers. For the time being at least, the government had in fact imposed prior restraint.[9]

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At the Washington Post, editor Ben Bradlee and his team had been hearing rumors of a big project at the Times but could not crack the secret. When the Pentagon Papers story hit on Sunday, Bradlee was beside himself. His immediate goal was to match what the Times had. He threw all his resources at it. Meanwhile, with the Times now enjoined from publishing anything further, Ellsberg became concerned that the momentum of the initial disclosures would evaporate and that the remaining documents might be successfully suppressed in court. Using a series of intermediaries and pay phones, he placed a call on Wednesday to an editor he knew at the Washington Post, Ben Bagdikian.[viii] If the Post could commit to publishing, Ellsberg said Bagdikian should fly to Boston to get a set–and bring a large suitcase. So, Bagdikian flew to Boston on Wednesday and got his own set of most of the documents.

Wednesday was also the day Ellsberg and his wife, Patricia, went on the lam–at first moving in and out of a series of motels in the Boston area. Ellsberg also worked feverishly to stash more copies of the Papers in various locations, to prevent FBI agents from gathering them, and he contacted more newspapers to offer them copies, on the theory that if more papers published the documents, the government would have a harder and harder time trying to persuade a court to attempt to put the milk back in the bottle.[ix]

With a version of the Papers in hand, the Post now swung into action, setting up a command center at Bradlee’s house in the Georgetown section of Washington. In one room, the writers got to work. In another room, the editors and lawyers got busy trying to decide whether to publish. They had twelve hours to do what the Times had done in three months. In some ways, their challenge was more difficult than the one faced by the Times. For one thing, the lawyers pointed out, the Post (unlike the Times) was contemplating publication in an environment in which a federal court had already issued a restraining order. The order did not apply to the Post, but that was something of a technicality; the lawyers could hardly maintain that they did not know how the executive and judiciary felt about publication. Post executives also had another worry that had not concerned the Times: the Post company owned several television stations, and the Nixon administration could be expected to seek revenge by using its majority in the FCC to block the renewal of those lucrative broadcasting licenses. What’s more, the Post company, strapped for cash, had just decided to join the trend toward selling stock to the general public. If the publisher, Katharine Graham, were charged with a felony for publishing the Pentagon Papers, the brokerage house underwriting the sale of the stock could back out of the deal; if convicted of a felony, she could be stripped of her television licenses. Either one might mean the end of the Post as a business enterprise.[10]

Finally, after frantic debate, the editors reached Mrs. Graham, who was hosting a dinner party at her home. On a conference call, she was told that it was now or never. She quickly gave her answer: “Go ahead, go ahead, go ahead. Let’s go. Let’s publish.”[11] Like Arthur Sulzberger, Katharine Graham was betting the house–the company, the newspaper, the family’s reputation. Like Sulzberger, she did so not only because she had good journalistic instincts but for another key reason. The fact was, she could. She owned enough of the paper to do whatever she wished. For better or worse, the publishers of the Times and the Post were answerable to no one. No less than Pulitzer, Hearst, or Luce, they were at the peak of their personal power. They were operating at a period in which their newspapers were profitable and the publishers were about as autonomous as they ever were. If they chose, they could stand up to the president himself.

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So, the copies of the Washington Post that appeared on Friday morning carried a front-page story about the massive Vietnam study, revealing that the Post had obtained the same classified materials as the Times. Government lawyers swiftly went into U.S. District Court in Washington seeking to impose prior restraint on the Post. Judge Gerhard Gesell refused to issue a restraining order, prompting the government to appeal. The appellate court reversed, and the Post was now in the same position as the Times – possessing the classified documents but muzzled from sharing them with the American public.

Meanwhile, all eyes were on the U.S. District Court in Manhattan, with Judge Gurfein presiding over a session to argue the merits of continuing the injunction against the Times. The newspaper’s  lead attorney was Alexander Bickel, a Yale Law professor.[x] He opened by noting that the Washington Post had published details from the secret report that very day and shared the story with the clients of the Post’s syndicated news service. The cat was out of the bag. There was no reason to continue enjoining the Times. Besides, Bickel continued, even after the disclosures by the two newspapers from the secret report, the sky had not fallen. “The Republic still stands,” he declared, drawing cheers from the crowd in the courtroom cheered. Gurfein banged his gavel for order and later cleared the courtroom entirely for a closed session to hear the substance of the government’s claim that the Pentagon Papers contained secrets that, if disclosed, would threaten national security. The hearing went on for hours, followed by more arguments in open court until well past 11 p.m.

The next day, Gurfein issued a ruling that shocked just about everyone. He ruled against the government. He said the Justice Department had failed to offer any “cogent reasons” for continued secrecy, and he went on to offer a stirring defense of press freedom:

The security of the Nation is not at the ramparts alone. Security also lies in the value of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of the freedom of expression and the right of the people to know . . .

 

In one concession to the government, however, the judge extended the restraining order against the Times until the government had a chance to appeal.

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On Friday evening, ruling in the government’s case against the Post, Judge Gerhard Gesell in Washington, had reached a similar conclusion and refused to impose prior restraint on the Post. The government promptly appealed (and secured a temporary restraining order against the Post), which meant that the two cases went to different circuits of the U.S. Court of Appeals. While lawyers argued, Ellsberg’s strategy of diversifying the outlets for publication bore fruit, and parts of the Pentagon Papers began appearing in some twenty newspapers nationwide, including the Boston Globe, the St. Louis Post-Dispatch, and the Christian Science Monitor.[12] Meanwhile, the Times and the government both appealed to the U.S. Supreme Court. The legal stakes were as high as they get. There was essentially no case law on this legal question, so the judges lacked almost all precedent. On Friday, June 25, the high court, acting with rare speed, agreed to review both cases and ordered oral arguments the very next morning.

On Saturday morning, the nine justices of the Supreme Court assembled in an open session, and lawyers for both sides were invited to make their oral arguments. As each side did so, the justices peppered them with questions. The interchanges went on for hours. At the end, Chief Justice Warren Burger thanked the lawyers, then adjourned.

On Wednesday, June 30, just fifteen days after the government had initiated the case, the justices assembled again. The chief justice read the court’s ruling. Although the justices wrote nine separate opinions, it was a clear-cut victory for press freedom. By a 6-3 margin, a majority had decided that the Times and the Post could resume publication of their series. When word reached the two newsrooms, reporters broke into cheers (which they don’t do very often), champagne flowed, and stories that had been frozen by the Nixon administration were quickly readied for publication in the next day’s papers.

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Because of the stakes involved, the high court’s ruling deserves close attention.[xi] Among the nine justices, there were three distinct schools of thought. One group of three (Justices Hugo Black, William O. Douglas, William J. Brennan Jr.) took a view sometimes known as “First Amendment absolutism.” That is, they believed that when the Constitution says “make no law . . . abridging the freedom of the press,” it means just that–the government may not restrain the press, no matter what. According to Black, “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” In this view, press freedom exists to serve the American people, the ultimate sovereigns in a system of self-government. “The press [is] to serve the governed, not the governors,” Black wrote. If the press causes some harm, then the remedies have to come after publication and not before.

Another group of three (Chief Justice Warren Burger, along with Justices John Marshall Harlan and Harry Blackmun) sided with the government. Burger objected on procedural grounds; he thought the court was being stampeded and wanted more time. Harlan objected to the rush as well, but he went to the merits anyway. His main point was that the president has the exclusive power to handle foreign relations for the United States and therefore must have the power to maintain secrets. In his opinion, Blackmun wrote that the case required balancing different parts of the Constitution:

The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs, and places in that branch the responsibility for the Nation’s safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions.

With such a 3-3 split, the three remaining justices (Potter Stewart, Byron White, Thurgood Marshall) held the balance. In answer to the question of whether the government could ever impose prior restraint, they said, in effect, it depends. To begin with, the government faces a heavy burden of proof in such cases. More important, they went on to spell out the conditions under which prior restraint might be justified in the future: the government would have to show that publication would present an immediate, serious, and irreparable harm to the national security. The threat could not be far-off or hypothetical; it could not be a matter of politics, or mere inconvenience or embarrassment. In the case at hand, they ruled, the government had not met the standard they had just invented. On that basis, they joined with the absolutists and held that publication could resume.

Naturally, the press hailed the ruling as a great victory, which it indeed was. But newspapers, which are averse to stories about complicated legal issues and allergic to stories about themselves, quickly changed the subject and moved on. In that, they may have been hasty, because the consequences of the Pentagon Papers case were many, sometimes subtle and sometimes roundabout.

First and foremost, of course, the 6-3 ruling was a tremendous legal win for the news media, on the scale of an earthquake that reshapes the landscape for a long time to come. The verdict remains the law of the land more than three decades later and may stand for a good deal longer. In the first showdown over prior restraint, the press won and the government lost, an outcome that pretty thoroughly repudiated the whole idea of prior restraint and created a de facto moratorium on its use.[13] That much is clear. What is more difficult to measure is the psychological impact. But judging by the record, it seems fair to say that the press as an institution was emboldened by the Pentagon Papers case. The experience of taking on the president (which, in this case, also meant Defense, Justice, and State) and coming out on top was a heady one. It would be only natural for a publisher, editor, or reporter to think that maybe the press really was some kind of Fourth Estate, that the media could tackle other powerful institutions, that journalism could do more than record the things that other people say and do.

The Pentagon Papers also vindicated the early reporting out of Vietnam, by Halberstam and others, which had tried to point out that the war effort was not working. Particularly when the Papers were printed in book form (as they quickly were), the government’s own documents could be used to settle some of the debates over the war. All the reporting that had caused so much controversy and bitterness for the Saigon press corps in the 1962-65 period was fully documented. In fact, if anything, the Papers indicated that the situation had been even worse (and more duplicitous) than even the most critical reporting had indicated. If they were going to report on the government, reporters concluded, they were going to have to become a lot more cynical.

The Pentagon Papers case also had an impact on American culture and politics. In terms of the “credibility gap,” the Pentagon Papers blew it wide open. The gap now became a chasm that threatened to swallow up every powerful institution in the country. No one could read the documents, or even the stories about them, without taking away the deeper message: the officials who run the White House and the Pentagon do not level with the American people. They exaggerate, they prevaricate, they even lie – all in pursuit of their own agendas. In terms of domestic politics, the Pentagon Papers provided fresh fuel for the antiwar movement. The release of the Papers also provided evidence that the government routinely abused the power to classify information, hiding materials from the public based on convenience or politics rather than national survival, and it showed that officials rarely caught up with the need to de-classify information.

In a narrower political sense, the Pentagon Papers had the effect of ratcheting up the war between Nixon and the press. Nixon had always resented and loathed the press, and the outcome in this case left him apoplectic. One result was a desperate attempt to control information by plugging “leaks.” Nixon had found that the FBI did not share his sense of urgency about the problem, so he started to demand new ways of stopping leaks. In doing so, he was heading down a road to perdition, one that would ultimately doom his presidency at a place called Watergate.

It is also important to note what the Pentagon Papers case did not do. One thing it did not do was to affect combat operations. Not a single U.S. casualty in Vietnam was ever blamed on any of the revelations. The Papers did not contain current, operational details. If they had, it is almost certain–based on a track record stretching over decades–that the press would have voluntarily censored anything of the kind.

In terms of defining the relationship between government and the press, the court ruling left many questions unanswered. It did not define what legal protections, if any, might be enjoyed by government employees who divulge secret or classified information. Were these “leakers” to be treated like villains or heroes? Were they reformist “whistle-blowers” … or disloyal sneak-thiefs? The case also did not address the status of the journalists who collaborate with leakers. Do the journalists have any legal claim of confidentiality? Do they enjoy any of the privileges that protect clergymen or doctors from having to testify about the things people tell them in confidence? On these matters, the court was silent, leaving them to future courts and Congress to argue over.

Specifically, the high court also sidestepped the matter of the leaker Daniel Ellsberg, whose case was not before them. Instead, he was facing criminal charges, which had been brought just one day before the Supreme Court ruling.[14] Nixon was furious at Ellsberg and wanted him destroyed. “Let’s get the son-of-a-bitch in jail,” Nixon told aides on the afternoon of June 30 as he began to outline a smear campaign against Ellsberg. “Don’t worry about his trial. Just get everything out. Try him in the press. Everything . . . get it out, leak it out. We want to destroy him in the press. Press. Is that clear?” Nixon, a lawyer, had little use for the law. To him, it was all politics. And in politics, what better weapon than a leak?[15]

As it turned out, though, Nixon’s determination to play rough with Ellsberg backfired. Eventually, Ellsberg was brought to trial in a federal court in California, represented by radical attorney Leonard Boudin. Ellsberg was charged with stealing government property, conspiracy, and violating the Espionage Act. After months of proceedings, his trial was suddenly halted. Judge Matthew Byrne got word from the government’s lawyers about something he just could not stomach. Not only had the Nixon administration tapped Ellsberg’s phones. Not only had the government hired goons to break up a rally where Ellsberg was speaking. Not only did the White House dangle the offer of making Judge Byrne the head of the FBI, while he was still presiding over the trial. The real bombshell was that two men hired by the White House to plug leaks for Nixon–known by the nickname “Plumbers”–had taken the president at his word that they should find a way to disgrace Ellsberg. What these plumbers, ex-CIA man Howard Hunt and ex-FBI man G. Gordon Liddy, decided to do was to burglarize the office of Ellsberg’s psychiatrist in hopes of finding something they could use against him. When Judge Byrne heard about the burglary carried out by government agents, he had had enough. “The totality of the circumstances of this case,” he declared, “offend ‘a sense of justice’.”

Case dismissed.[16]


[1] Under the circumstances, however, it is debatable whether Ellsberg “stole” anything.

 

[2] Others included the main authors, Morton Halperin and Leslie Gelb.

[3] Since he first started photocopying in 1969, he had made several sets, for the senators he hoped would make them public. He also decided later to salt several extra sets away in the apartments of various friends, to thwart any attempt by the government to silence him. During the copying process, Ellsberg decided that it might be intimidating for a recipient of a leaked copy to see the stamp TOP SECRET on each page. So, he embarked on what he referred to sardonically as “instant declassification”–going through all 7,000 pages and using a scissor to cut out the classification stamp. From that adulterated copy he made further copies which bore (almost) no indication of their secret status. Despite his best efforts, though, even late “editions” still included a page here and there with the TOP SECRET legend.

 

[4] In fact, Ellsberg made available only forty-three of the forty-seven volumes, withholding four volumes of diplomatic history that contained many still-important secrets.

 

[5] In this way, Sheehan may have broken trust with Ellsberg, but he may also have done him a big favor. If it ever all came out in a criminal trial, Ellsberg could assert that he had not actually “given” the study to Sheehan. The reporter was, in other words, taking the whole potential liability upon himself. According to Times editor Max Frankel, “Neil was never given the material, and Ellsberg never authorized its duplication. This was not the kind of deal anticipated in Journalism 101, but it was hardly shocking to me and other reporters who had often trafficked in top secret military and diplomatic information.” (See Rudenstine, pg. 53.)

 

[6] At one meeting, Loeb was accompanied by another of his firm’s senior partners, Herbert Brownell, who had been attorney general under Eisenhower and who had drafted the Executive Order that established the federal system for classifying information. Brownell warned Sulzberger that he would probably go to jail.

 

[7] When he retired in October 1997, after thirty-four years of publishing the Times, Sulzberger was asked what had been his toughest decision. Without hesitation, he said it had been the Pentagon Papers case.

 

[8] According to the tape recordings of Nixon’s phone call to Mitchell on June 15, the attorney general and the president were feeling confident.

Mitchell: “We got a good judge on it – uh, Murray Gurfein . . . ”

Nixon: “I know him well – smart as hell.”

Mitchell: “Yeah, and – uh, he’s new, and – he’s appreciative, so . . . ”

Nixon: [laughing] “Good!”

Mitchell: “We ought to work it out.”

 

[9] Some members of the Times staff wanted to print the following day’s paper with a big chunk of white space where the Pentagon Papers story would have appeared as a mute protest against censorship, but the paper appeared as usual.

 

[10] In the end, the stock offering went ahead, along lines similar to those used by the Times in 1969. The Post offered about 1 million Class A shares, which were all owned by members of the Graham family, and about 10 million Class B shares, which could be bought by the public. Two years later, a big chunk of the Class B shares were bought by investor Warren Buffett, who became an important friend and adviser to Kay Graham. The date of the initial public offering was June 15, 1971, the day before Bagdikian got his copy of the Pentagon Papers.

 

[11] In this trial by fire, many see the forging of an important bond of trust and mutual respect between Kay Graham and Ben Bradlee that would help them through the Watergate crisis a year later. (See Katharine Graham, Personal History, pg. 450.)

 

[12] Ellsberg explained later that he picked most of the newspapers based on their degree of opposition to the war.

 

[13] The most notable exception since 1971 came in 1979, when the government attempted to stop a magazine called The Progressive from printing what the magazine called “the H-Bomb Secret.” Citing the standard for prior restraint articulated in the Pentagon Papers case, the federal judge in the Progressive case ruled that the government had met its burden of showing “grave, direct, immediate and irreparable harm to the United States” and granted a TRO. While the case was pending, however, others published details about H-bomb construction, forcing the government to drop its case against the Progressive on the grounds that it was now moot because the secrets were tumbling out in a variety of public forums.

 

[14] Ellsberg was almost immediately “outed” by a journalist who was not involved in the Pentagon Papers case: Sidney Zion, a former Times reporter who had left the paper in 1970 to found Scanlan’s Monthly magazine. Although Zion had no first-hand information, he publicly identified Ellsberg on a radio show in New York. (See Arthur Gelb, City Room, pgs. 563-4) Ellsberg fully expected that the FBI would know it was he who had leaked, so he was not particularly upset with Zion. (See Ellsberg, pgs. 393-4.)

 

[15] Nixon always seemed to make a major distinction between authorized leaks and unauthorized leaks. The former was a tool of governance; the latter was a personal affront and an abomination.

 

[16] Erwin Griswold, who, as the solicitor general of the United States in 1971, had argued the government’s side in the Pentagon Papers before the Supreme Court, may deserve the last word. Writing an op-ed essay in 1989 (in, of all places, the Washington Post), Griswold observed:

I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat . . . It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another. There may be some basis for short-term classification while plans are being made, or negotiations are going on, but apart from details of weapons systems, there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past. This is the lesson of the Pentagon Papers experience, and it may be relevant now.

 


[i] This section is based on the masterful account of the Pentagon Papers by law professor David Rudenstine, The Day the Presses Stopped. Also essential are some other secondary sources, including Halberstam, Powers that Be, 564-86; Stone, Perilous Times, 500-25; Tifft and Jones, The Trust, chap. 32; Ritchie, Reporting from Washington, 254-7. In addition, several of the principals have written memoirs of the case. The most detailed is Ellberg’s Secrets. Also valuable are the relevant portions of Graham’s Personal History, Bradlee’s A Good Life, and Max Frankel’s The Times of My Life. In addition to the court rulings in the case, the briefs (including the “secret brief” made available by the National Security Archives) also proved indispensable. For an excellent collection of documents and analysis, see the National Security Archive website devoted to the case, edited by Tom Blanton. http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/

[ii] Rudenstine, 2.

[iii] Ellsberg, chap 26.

[iv] Max Frankel, who was the Washington bureau chief at the time and, thus, Sheehan’s immediate boss, says it was $2,000. See Frankel The Times of My Life, 325.

[v] Halberstam, Powers that Be, 565-86.

[vii] Quoted in Frankel, 335.

[viii] Later a journalism professor and author of the influential book The New Media Monopoly.

 

[ix] For Ellsberg’s version, see Secrets, chap. 32.

[x] When the Times’ long-time laws firm balked, Goodale recruited Bickel and a young First Amendment expert, Floyd Abrams, to help with the case.

 

[xi] New York Times v. United States. 403 U.S. 713 (1971).

 

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