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War Lies and Public Opinion

The Pentagon Papers as History

Les dossiers du Pentagone comme histoire
Stephen J. Whitfield

Résumés

Cet article examine le cas constitutionnel le plus important de l’histoire américaine concernant le droit de la presse d’exposer les origines d’une guerre – alors qu’elle est encore en cours. La crise du début de l’été 1971 était sans précédent. Par le passé, au nom de la sécurité nationale, des restrictions avaient parfois été imposées aux journaux et aux magazines qui condamnaient la guerre en cours – la plus notoire étant la Première Guerre mondiale au xxe siècle. Mais le cas des dossiers du Pentagone était particulier, car le New York Times, et bientôt le Washington Post, puis une vingtaine d’autres quotidiens, reproduirent des documents top secrets que la presse n’était pas autorisée à posséder. La Cour suprême dut donc résoudre le conflit entre la presse revendiquant le droit au Premier amendement, apparemment sans ambiguïté (« Le Congrès ne fera aucune loi… »), et l’avertissement de l’exécutif selon lequel la vie des soldats américains en Indochine était en jeu en raison de la plus énorme fuite de documents gouvernementaux secrets jamais enregistrée. Les dossiers du Pentagone constituent un épisode révélateur de l’histoire du journalisme, de l’histoire de la gouvernance et de l’histoire de la jurisprudence.

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Texte intégral

1The most important historical test of the freedom of the American press began in the mind of one man. In 1967, at the epicenter of military power, stood Robert S. McNamara. As Secretary of Defense, he had assumed the heavy responsibility of planning, overseeing and justifying the U.S. military intervention in Vietnam. As a former president of the Ford Motor Company, as a managerial wizard and technocrat, he had deeply impressed the two Presidents – John F. Kennedy and Lyndon B. Johnson – whom he had served since 1961. The episode that McNamara instigated, the legal and political test that one of his decisions inadvertently produced, proved to be an illuminating test of the Constitutional arrangement of balance of powers. The challenge erupted in no small measure because of a paralysis of will among members of Congress. The case of the Pentagon Papers also pitted the executive branch against the judiciary. And in the foreground was the press – what the Victorian historian Thomas Carlyle called the Fourth Estate. A Constitutional crisis that the Supreme Court was obliged to resolve stemmed directly from the political ordeal of the Vietnam War that had been raging for about a decade.

  • 1 Deborah Shapley, Promise and Power: The Life and Times of Robert McNamara, Boston: Little, Brown, 1 (...)

2By 1967 McNamara knew that the only hot war the United States was waging was already veering toward a full-scale catastrophe. Officially enthusiastic, the Secretary of Defense had come to harbor gnawing doubts about the success and resolution of what critics were dubbing “McNamara’s War.”1 What had gone wrong? How had American policy-makers devised and implemented the strategies that had resulted in such an impasse? How had the goals and means somehow led to the nation to engage in war in which both military victory and political objectives remained elusive?

  • 2 Quoted in Floyd Abrams, Speaking Freely: Trials of the First Amendment, New York: Viking, 2005, 8; (...)

3On 17 June 1967, the Secretary of Defense commissioned a top-secret study to determine the answers. He wanted it to be “encyclopedic and objective,” so that future officials might understand how well over two decades of military and political involvement in Indochina had led to a quagmire, with no end in sight. In 1967 the American military personnel who were killing and dying in Vietnam numbered under half a million; the following year the increase would reach 536,000. Officially the war-makers were optimistic. But McNamara smelled a disastrous failure, a foreboding that he kept largely to himself. The “Vietnam History Task Force” was also shrouded in secrecy. The decision to create this study of Indochina policy was concealed from President Johnson, from his Special Assistant for National Security Affairs, Walt Whitman Rostow, from Secretary of State Dean Rusk, and from Vice President Hubert H. Humphrey. The task of retracing the steps that officialdom took toward the catastrophe was assigned to Morton H. Halperin, a deputy assistant secretary of defense who headed of the International Security Affairs Section (ISA) of the Pentagon.2

Behind the Pentagon Papers

  • 3 John Prados and Margaret Pratt Porter (eds.), “Creating the Pentagon Papers,” in Inside the Pentago (...)

4In turn, Halperin picked Leslie H. Gelb to direct the Vietnam History Task Force. Both of them held doctorates from Harvard, where both scholars had served as teaching assistants for Professor Henry A. Kissinger of the Department of Government. Neither Halperin nor Gelb had ever been to Vietnam. Gelb’s task was to assemble the documents that constituted the paper trail that had ended in the quagmire. Kissinger served briefly and peripherally as a “consultant” to the study, which enlisted the services of three dozen analysts. Half of them were military officers; nine were academics; and the other nine were civilians working in the bureaucracy. They included the future diplomat Richard Holbrooke and the future general John Galvin, who would become supreme commander of NATO. The authors of the study expected to remain anonymous, and conducted no personal interviews. The Central Intelligence Agency (CIA) and the Department of State (without Rusk’s knowledge) provided some documents but withheld others; other documents came from the National Security Council at the White House.3

  • 4 Leslie H. Gelb, “Today’s Lessons,” Life, 34; Sanford J. Ungar, op. cit., 28; John Prados and Margar (...)
  • 5 Quoted in David Halberstam, The Best and the Brightest, New York: Random House, 1972, 645; Harrison (...)
  • 6 Quoted in Sanford J. Ungar, op. cit., 41 and in David Halberstam, op. cit., 633; Deborah Shapley, o (...)

5Gelb himself happened to be a “dove,” an opponent of the war. But he later insisted that “no one was ever asked his views before being signed on,” perhaps because everyone enjoying sensitive security clearance was expected to harbor reliable views on the war. To ensure the utter independence of the project, McNamara never met Gelb, and never interfered with the collective effort at reconstructing the politically charged past.4 But his disenchantment was evident to Johnson, who realized that McNamara had “gone dovish on me.” Johnson then arranged for McNamara to get a new job, in the spring of 1968, as president of the World Bank. Richard M. Nixon was elected that fall and took office on 20 January 1969. Gelb remained at the ISA until April 30, however, and within two months completed the History of U.S. Decision-Making Process on Vietnam Policy. Halperin helped draft the 4,000-word summary of the 47 volumes. They totaled about three thousand pages of text,5 plus another four thousand pages of documents. Fifteen sets of the History were printed for officials and institutions at the very highest level. “Set Number One” of what came to be called the Pentagon Papers was destined for McNamara at his new perch at the World Bank, where, according to a close friend, “he couldn’t bear to read them.” The former Secretary of Defense who had commissioned the study admitted that “they could hang people for what’s in there.”6

  • 7 Sanford J. Ungar, op. cit, 40-41; David Rudenstine, op. cit., 31, 35; Harrison E. Salisbury, op. ci (...)

6Two sets were deposited at the Rand Corporation, the research institute which worked primarily on Air Force contracts. One Rand set remained in Washington, D.C.; the other was shipped to the Rand office in Santa Monica, California. So furtive was this process that the study was not logged into Rand’s Top Secret Control system. There in Santa Monica, one of the authors of the Top Secret study read it for the first time in its entirety, conscientiously, for several months. His name was Daniel Ellsberg. In the summer of 1969, he was 38 years old, a Harvard graduate, an ex-Marine and the divorced father of two children. Initially a “hawk,” Ellsberg had served in the Department of State and the Department of Defense, before becoming a Rand defense analyst. In reading the Pentagon Papers, Ellsberg had been granted clearances so far above the right to read Top Secret documents that Congress was unaware of the codes by which he was entitled to read classified material.7 By 1969, he had become a sharp critic of the war and advocated withdrawal from Vietnam. The Papers thoroughly disproved the official claim of a U.S. response to aggression from North Vietnam against South Vietnam. Indeed, the research that Gelb had supervised would validate many of the suspicions of critics of the military intervention. The U.S. government was intent on violating the Geneva Accords from the moment they were signed in 1954; and official claims that no escalation was occurring in the early and mid-1960’s were undermined by the actions and intentions revealed in the documents. Ellsberg detected a pattern that was one of hypocrisy and duplicity, the trajectory of a moral and military disaster.

Secrets Uncovered

7McNamara had doubted that the war could be won. Ellsberg believed that the war should not be won. He also surmised that President Nixon was intent on escalating the war in the illusory hope of a decisive victory. That suspicion compelled Ellsberg to decide to photocopy the Pentagon Papers. He wanted the public to read what he had read. That it had been lied to might generate outrage, and reinforce the demand to end the war. In that effort Ellsberg found a collaborator in a dismissed employee of the Rand Corporation, Anthony Russo, an engineer and political scientist who was, if anything, even more ardently anti-war than Ellsberg was.

  • 8 David Rudenstine, op. cit., 36, 40; Tom Wells, op. cit., 332-33; Daniel Ellsberg, op. cit., 299, 30 (...)

8Russo’s girlfriend, Lynda Sinay, ran a Los Angeles advertising agency, where a rented Xerox 914 machine had been installed. In September, 1969, Ellsberg took out at the end of almost every day one volume of the Pentagon Papers from Rand’s library. Often accompanied by Russo, Ellsberg would pay a nocturnal visit to Sinay’s office. His two children, Robert and Mary, ages 13 and 10, sometimes helped too. The machine could photocopy only one page at a time, a laborious process that took several seconds. Nor could the machine collate. Was the photocopying illegal? Ellsberg was uncertain whether he was acting illegally. Unlike Great Britain or Canada, the United States has no Official Secrets Act; nor had the Congress ever passed a law involving the classification of “Top Secret-Sensitive” documents (with the exception of information about atomic energy).8 However vague was the legal jeopardy Ellsberg faced, he did blot out the stamps of TOP SECRET-SENSITIVE on the documents, and at first intended to give copies of the Papers only to authorized personnel.

  • 9 Quoted in Tom Wells, op. cit., 372; Daniel Ellsberg, op. cit., 347; David Rudenstine, op. cit., 44.

9But no one showed interest in reading the Papers, much less fathoming their significance. The indifferent included the emphatically anti-war J. William Fulbright, who chaired the Senate Foreign Relations Committee, and not the more dovish Senator George S. McGovern, and not Nixon’s National Security Advisor, Henry Kissinger. The self-deception of officialdom constituted a pattern that Ellsberg believed demanded exposure. Each administration, he had concluded, perpetrated the same errors, adopted the same pointless policies, and therefore reinforced the same tragic decisions as its predecessor. But nothing was evidently done to correct them. Ellsberg meanwhile became a senior research associate at MIT’s Center for International Studies. With his second wife, Patricia Marx, whom he had married in August, 1970, he relocated to Massachusetts.9

  • 10 Ibid., 46, 47; Harrison E. Salisbury, op. cit., 63, 86-87; Daniel Ellsberg, op. cit., 372; Neil Sh (...)

10There Ellsberg read, on the morning of 28 March 1971, an extensive review in the New York Times Book Review of several volumes on the Vietnam war, under the startling headline: “Should We Have War Crime Trials?” The reviewer was Neil Sheehan, a former United Press International war correspondent in Vietnam who had been writing for the Times since 1965. He specialized in covering the Department of Defense. The 34-year-old Sheehan reasoned in his review that, “if you credit as factual only a fraction of the information assembled here about what happened in Vietnam, and if you apply the laws of war to American conduct there, then the leaders of the United States for the past six years at least, including the incumbent president, Richard Milhous Nixon, may well be guilty of war crimes.”10 Such views spurred Ellsberg to grasp that his best shot at getting the Papers in some form to the general public was through the conduit of the New York Times.

  • 11 Quoted in Harrison E. Salisbury, op. cit., 93; Steve Sheinkin, Most Dangerous: Daniel Ellsberg and (...)
  • 12 Daniel Ellsberg, op. cit., 429; Tom Wells, op. cit., 399-402; Steve Sheinkin, op. cit., 202; David (...)
  • 13 Harrison E. Salisbury, op. cit., 15-16, 285; Steve Sheinkin, op. cit., 203; Max Frankel, op. cit., (...)

11Sheehan was willing to accept the documents, after getting the approval of the crackerjack columnist James (Scotty) Reston, who suspected that revelations buried in the Pentagon Papers might turn them into “the greatest story of the century.” Sheehan and his wife Susan then met with Ellsberg, who gave them the key to his apartment near Harvard Square.11 The reporter assumed that he was thus encouraged to photocopy the Pentagon Papers but without an explicit authorization do so. Ellsberg evidently did not want to be jailed for violating his security clearance, even though Congress had never devised criminal sanctions for the unauthorized transfer of classified material to the press. Ellsberg never actually handed over the documents to Sheehan. Nor did he get the last four volumes, which consisted mostly of cable traffic describing diplomatic efforts to bring the war to a conclusion and to effectuate the release of U.S. prisoners of war.12 That still left five cartons of Pentagon Papers, which took the Sheehans three days to photocopy, thanks to technical advances in high-speed xerography. But just because a reporter had managed to acquire most of the Pentagon Papers did not necessarily mean that his newspaper should do anything about it. In urging the Times to publish the Pentagon Papers, Sheehan did not identify his source to his editors or to his publisher or to the legal counsel for the newspaper; nor did any of his superiors ever ask him who it was. Max Frankel, a former diplomatic correspondent who had become the Washington bureau chief of the Times (and would later serve as its executive editor), nevertheless realized that excerpting the Pentagon Papers would raise the stakes to a hitherto unknown level, rubbing raw the wound that the Vietnam war had inflicted upon the body politic.13

Shaping “Project X”

  • 14 Sanford J. Ungar, op. cit., 90; Hedrick Smith in Prados and Porter (eds.), op. cit., 66; Harrison E (...)

12The foreign news editor of the Times, James L. Greenfield, took charge of what managing editor A. M. (Abe) Rosenthal called “Project X.” Greenfield was given a staff of over a dozen, including Sheehan and other reporters, as well as security guards on 24-hour vigilance. The newspaper’s famous two-acre city room, which was a block long (from 43rd to 44th Streets) and half a block wide, was too open and accessible for Project X. Instead it operated inside the New York Hilton Hotel, on the eleventh and thirteenth floors to sift through and analyze the documents (and to compare them with the coverage in the Times’ own news columns at the time). Only one maid was entitled to clean the rooms where Project X was being realized; her off-day meant that the rooms were left untouched. But however frantically Greenfield, Sheehan, and their colleagues worked to prepare their stories and to identify salient excerpts drawn from the Pentagon Papers, the publisher made clear that the final decision to bring these documents to light – or to suppress them – was to be his alone.14

  • 15 Ibid., 373-76, 380; David Rudenstine, op. cit., 48.

13His name was Arthur Ochs (Punch) Sulzberger. Forty-five years old in the spring of 1971, Sulzberger was the youngest publisher in the history of the newspaper that his grandfather, Adolph S. Ochs, had made into the nation’s most admired daily. The dilemma that Sulzberger suddenly faced was excruciating; no press lord in American history ever faced so painful a choice. Should he make available to his readers the biggest cache of classified documents ever dumped on a newspaper? Should he expose the origins of an ongoing, raging war that was tearing apart the very fabric of the nation? Were Sulzberger to endorse publication of top-secret material, did the First Amendment to the Constitution protect the New York Times? Or might its publisher and editors be subject to criminal prosecution for violation of the Espionage Act?15

  • 16 Ibid., 57, 61; Harrison E. Salisbury, op. cit., 126-27, 136-37; Floyd Abrams, op. cit., 11; Max Fr (...)

14On the masthead immediately below Sulzberger’s name was that of Harding Bancroft. As executive vice president, he opposed publication of the Pentagon Papers. So did the newspaper’s own law firm, Lord, Day & Lord, which warned that Sulzberger and probably his top editors risked jail. A senior partner at the firm, Louis M. Loeb, told Sulzberger that publication would be unpatriotic, irresponsible and illegal. Yet Loeb could cite no precedents. No newspaper had ever been censored or punished because its “communication” of information about “national defense” might be construed as injuring the U.S. to the “advantage” of a foreign power. Curiously Lord, Day & Lord did not warn Sulzberger that it would refuse to defend the newspaper were it to ignore the unambiguous advice of the law firm and to publish the documents. But the publisher was clearly on notice of extreme peril to the Times.16

  • 17 Quoted in ibid., 53; Floyd Abrams, op. cit., 10; David Rudenstine, op. cit., 62; Harrison E. Salisb (...)

15Rosenthal himself had already decided, should Sulzberger cave in, to resign in protest from the newspaper that he loved. Rosenthal had become managing editor only two years earlier, and the Times had employed him for his entire career as a journalist. Were the newspaper to forfeit the opportunity to bring the Pentagon Papers to the surface, other top editors might have quit as well; and the stature of the Times would have been permanently damaged. That tipped Sulzberger over. In agreeing to do a ten-part series on the Pentagon Papers, with supporting documents, he realized that he could not lose his top editors. The publisher understood that, were the newspaper to buckle under official threats, the Times would be forever dishonored, and its readers’ trust perhaps fatally weakened. Knowing that publication of excerpts from the Pentagon Papers entailed a possible defiance of governmental authority, Sulzberger thus demonstrated true grit.17

16He insisted on a daily space limitation of six pages, with the first of the ten parts scheduled for Sunday, 13 June 1971. Project X was so clandestine that typesetters making up the “dummy” for the front page were instructed to leave blank three columns wide and five inches deep on the front page, with only the mysterious word “Neil” to mark it. The stories that Sheehan and his colleagues produced were specially type-set in a sealed room on the ninth floor of the Times building, with a watchman posted outside the door to bar entry to anyone lacking authorization to enter. That Sunday morning’s press run began the flow of what would become the most enormous leak of government secrets in the entire history of the republic.

  • 18 Neil Sheehan, “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement,” New Y (...)

17The 3-column headline was deliberately low-key: “Vietnam Archive: Pentagon Study Traces Three Decades of Growing U.S. Involvement.” (The word “secret” was prudently avoided.) The lead story underscored the disconnect between moderation in public and the surreptitious effort to deepen American support of the regime in the South and to intensify the war against North Vietnam. Such escalation ignored the warnings of the intelligence community about the military ineffectiveness of the U.S. commitment. The story of the “Vietnam Archive” left officials in the Nixon administration stunned. Very, very few of them – besides Kissinger – had even been aware of the existence of the Papers, much less of their contents. Before these officials could get to work the following morning, the front page of Monday’s Times continued with such revelations: “Vietnam Archive: A Consensus to Bomb Developed Before ‘64 Election, Study Says.”18 The story exposed a discrepancy between President Johnson’s 1964 campaign promises as well as White House claims that “we seek no wider war.” That was, after all, the official reassurance. But the newspaper revealed a consensus among his advisors to recommend a wider war after the victory over Senator Barry Goldwater, the Republican nominee who had advocated the military escalation that the Democrats had supposedly repudiated. The full-scale bombing of North Vietnam had been on the agenda even as Johnson and his fellow Democrats were denouncing the GOP proposal.

  • 19 Quoted in David Rudenstine, “The Pentagon Papers 20 Years Later,” New York Times, 30 June 1991, IV, (...)

18The Times reported that the historical scope of the Pentagon Papers stopped on 31 March 1968. On that date Johnson had announced his withdrawal from the Presidential race, and a new Republican administration gained power about nine months later. The Papers were thus more likely to damage the Democrats more than the GOP. Kissinger was nevertheless indignant, and on the afternoon of 13 June phoned Nixon, who went ballistic – as he usually did whenever the press published leaks. Denouncing “this wholesale theft and unauthorized disclosure,” Kissinger added: “It’s treasonable, there’s no question.” The National Security Advisor therefore urged the President to stop the presses, lest he come across as “a weakling.” The following day, H. R. (Bob) Haldeman, the White House chief of staff, noted that “the two of them are in a frenzy.”19

  • 20 Quoted in Sanford J. Ungar, op. cit., 120.

19This pair had secrets of their own. Kissinger was then conducting negotiations so clandestine that the Secretary of State, for example, was uninformed about the opening of diplomatic relations with the People’s Republic of China. This startling breakthrough was part of delicate attempts to settle the Vietnam war on the most favorable American terms. So huge a leak to the Times, Kissinger feared, might rattle the Chinese government, which is why he insisted that the newspaper be blocked from further disclosures. Some of the President’s other advisors worried that, if the Times could get away with such a leak, journalists would be emboldened to probe more deeply into the political and military secrets of the Nixon administration as well. On Monday, 14 June, Attorney General John Mitchell prepared the next legal step, by sending a four-paragraph telegram to the publisher of the New York Times. The two published articles, Mitchell claimed, already violated the Espionage Act (Title 18, U.S. Code, Section 793), and warned that “further publication of information of this character will cause irreparable injury to the defense interests of the United States.”20

The Times vs. the Department of Justice

  • 21 Quoted in ibid., 124.
  • 22 Quoted in Harrison E. Salisbury, op. cit., 262, in David Rudenstine, op. cit., 120, 121, and in Ree (...)

20The Times ignored the telegram and to proceed with publication of the third story, below a headline that announced: “Vietnam Archive: Study Tells How Johnson Secretly Opened Way to Ground Combat.” That story activated the complaint for a permanent injunction against Sulzberger, Sheehan and twenty other executives, editors, and reporters at the New York Times. The civil suit of the Department of Justice claimed that such articles – and future articles – would have the effect of prejudicing “the defense interests of the United States,” leading to its “irreparable injury.”21 That very day, 15 June, Nixon made the sensational announcement that he had accepted an invitation to visit the People’s Republic of China (formerly known as Red China). Kissinger’s fear of jittery nerves in Beijing had proved unwarranted. But Nixon intended to plug the leaks and punish the culprits anyway. But who they? Who had leaked the Pentagon Papers to the press? “Fucking Jews” – either Ellsberg or Halperin – was Nixon’s conjecture, and he instructed Haldeman to “do everything we can to destroy the Times.”22

21But what about the First Amendment? Only a month before the Pentagon Papers were published, for example, Chief Justice Warren E. Burger, himself a Nixon appointee, had addressed a leafleting case that had originated in Chicago, and reaffirmed the “heavy presumption” that the Supreme Court harbored when considering “the Constitutional validity” of prior restraint on the press. It was only a presumption, however, which meant that it could be rebutted. In J.M. Near v. State of Minnesota (1931), a majority of the Justices held that the sort of injunction that the Nixon administration hoped to secure constituted the sort of censorship that the First Amendment was designed to prevent. The Near standard made it very difficult to punish the press for infractions that displeased government officials. Yet even in Near v. Minnesota, Chief Justice Charles Evans Hughes had acknowledged that:

  • 23 Quoted in Sanford J. Ungar, op. cit., 113; Charles Evans Hughes, C. J., in Near v. Minnesota (1931) (...)

the protection even as to previous restraint is not absolutely unlimited. […] A government might prevent. […] the publication of the sailing dates of transports or the number and location of troops. On similar grounds,” he added, “the security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.”23

  • 24 Harrison E. Salisbury, op. cit., 242-43, 245; John Prados and Margaret Pratt Porter, op. cit., 120; (...)
  • 25 Floyd Abrams, op. cit., 7, 16; Nelson W. Polsby, “In Praise of Alexander M. Bickel,” Commentary 61 (...)
  • 26 Quoted in Floyd Abrams, op. cit., 23, 30.

22Though Sulzberger had decided to defy the executive branch if the Times were challenged, he would yield to the judicial branch if it decided authoritatively that the Espionage Act had been violated. Now the newspaper needed to defend itself against the injunction that, if issued and upheld, would stop the presses. Lord, Day & Lord suddenly backed out, announcing its refusal to represent the Times, giving Sulzberger, who felt double-crossed, only twelve hours to spare in order to fight an injunction. (Soon after the imbroglio was over, he would shift most of the newspaper’s legal business elsewhere.)24 Vigorous and committed advocacy was suddenly needed. Salvation came in the form of an eminent Yale law professor named Alexander M. Bickel. He was a peculiar choice, however. Bickel had never argued a case before the U.S. Supreme Court. In fact, he was so inexperienced that he had practiced as an attorney in a court of law only once in his life, shortly after the Second World War, in small claims court in New Haven, Connecticut. (He had lost the case.)25 Bickel’s co-counsel was a former student, Floyd Abrams, who had never been to U.S. Supreme Court as a visitor. Soon after he agreeing to join Bickel in representing the Times, Abrams fielded the following question from a colleague in his law firm: “What’s it like representing traitors?”26

  • 27 Quoted in Sanford J. Ungar, op. cit., 125, and in David Rudenstine, op. cit., 106, 143-44; Floyd Ab (...)
  • 28 David Rudenstine, op. cit., 69, 108, 121; Daniel Ellsberg, op. cit., 394.

23On 15 June, U.S. District Court Judge Murray I. Gurfein, a Nixon appointee, issued the restraining order that the government had sought. Reserving judgment on the merits of the case, he set a full hearing for Friday, 18 June, and disagreed with Bickel that such judicial intervention constituted “a classic case of censorship.”27 The next morning, the New York Times offered its readers no three-column front-page story. No six inside pages were devoted to what Sheehan and his colleagues had intended to reveal and analyze. For the first time in the nearly two centuries, the federal government had officially stopped a newspaper from publishing a specific story. Nor had any federal jurist, until Judge Gurfein, ever determined what was to appear on the front page of an American newspaper. The Times headline read: “Judge, at Request of U.S., Halts Times Vietnam Series Four Days Pending Hearing on Injunctions.” A judge had accepted the argument of the Department of Justice that an exception could indeed be carved out of the First Amendment. Such censorship infuriated Ellsberg, whose responsibility for leaking the Pentagon Paper the FBI had known about for at least a year. that Ellsberg had photocopied the Pentagon Papers. He went into hiding on 16 June, staying with his wife in five different locations in Cambridge.28

National Security Defined

  • 29 Quoted in Harrison E. Salisbury, op. cit., 10; Katharine Graham, Personal History, New York: Alfred (...)
  • 30 Quoted in Benjamin C. Bradlee, op. cit., 316, and in David Rudenstine, op. cit., 131, 132, 134, 136 (...)

24With the New York Times silenced, and with the three television networks also rejecting Ellsberg’s offer to show them some of the Papers, he contacted the Washington Post. One of its editors quickly flew up to Boston, where he picked up, under a pseudonym, a package so huge that he needed to buy a ticket for another first-class seat on which to stack about two-thirds of the entire “Vietnam Archive.”29 But should the Washington Post publish excerpts from it? Arguments echoed the debate conducted at the highest levels of the New York Times that spring--except that the Post knew of the legal jeopardy that its rival was already facing. The arguments among the editors, reporters, attorneys, and publisher Katharine Graham were sometimes heated, and were conducted under much less leisurely conditions than their counterparts at the Times had enjoyed. Executive editor Ben Bradlee’s own instincts were to publish, of course; this was one big, juicy story. Graham’s decision was risky but final: “Let’s go. Let’s publish.” On Friday morning, 18 July, the headline on the front page of the Post read: “Documents Reveal U.S. Effort in ‘54 to Delay Viet Election.” The Post also made a claim that the Department of Justice was bound to find ominous: “First of a Series.”30

  • 31 David Rudenstine, op. cit., 186-88.

25The response of the Department of Justice was to issue a complaint that identified fifteen defendants, including Graham and Bradlee. In court the Post’s attorneys argued that revelations related to the Geneva Accords, signed as far back as 1954, hardly represented an irreparable breach of national security. Unlike Gurfein, Judge Gerhard A. Gesell (a neighbor of Bradlee’s) discerned nothing in the newspaper’s disclosures to indicate that irreparable injury was being done to the national interest. Citing Near v. Minnesota, Judge Gesell therefore refused to grant the government an injunction to stop the presses. Prior restraint, he declared, was inconsistent with the First Amendment. Nor could he find a Congressional statute that authorized a temporary restraining order. The U.S. Court of Appeals nevertheless reversed Gesell, though not before another front-page revelation from the Pentagon Papers from appearing in the late edition of 19 June.31

  • 32 Floyd Abrams, op. cit., 25-30; Harrison E. Salisbury, op. cit., 304-8; Sanford E. Ungar, op. cit., (...)

26Meanwhile, on Friday, 18 June, the struggle that the New York Times was waging to overturn the injunction succeeded. Judge Gurfein withdrew his temporary restraining order, noting the omission of the word “publication” from the Espionage Act. That 1917 law was designed to preclude the transmission of military secrets, either to the advantage of a foreign power, or so that the U.S. might be weakened, he noted. The Act was not intended to censor newspapers. Nor was Gurfein impressed by the sorts of “secrets” that the Department of Justice wanted to protect. But the government immediately appealed Gurfein’s decision, and convinced the Court of Appeals to invalidate it. The ban therefore continued, and Ellsberg dumped more “secrets” at the Boston Globe, which headlined its own revelations on 22 June: “Secret Pentagon Documents Bare JFK Role in Vietnam War.” The Papers demonstrated that President Kennedy had supported secret military operations against North Vietnam,32 in direct violation of the Geneva Accords.

  • 33 Daniel Ellsberg, op. cit., 396, 398, 409-10.
  • 34 Quoted in Floyd Abrams, op. cit., 58; Sanford J. Ungar, op. cit., 192, 203; Daniel Ellsberg, op. ci (...)

27Other newspapers stepped into the breach as well, such as eleven newspapers in the Knight chain, beginning on 24 June. The chain not only owned newspapers in cities as large as Detroit and Philadelphia, but also served communities as small as Akron, Ohio; Charlotte, North Carolina; Macon, Georgia; and Tallahassee, Florida. Thus the saturation that had begun in New York City and Washington, D.C. quickly spread to the heartland. Though the editorial pages of the Los Angeles Times had long championed Richard Nixon, a native Californian, it did not want to fall far behind in its coverage of the origins of the Vietnam War. Neither did the St. Louis Post-Dispatch or the Christian Science Monitor.33 Nineteen newspapers published highly classified material traceable to Ellsberg’s leak, and in not a single instance did the FBI intercept transmission of the Pentagon Papers. He had achieved what Time Magazine called “the slickest counter-Establishment insurgency of recent times.” Yet the Nixon administration hit only four dailies with injunctions and prosecutions. What did the New York Times, the Washington Post, the Boston Globe and the St. Louis Post-Dispatch have in common? Their editorial pages were generally critical of Nixon’s policy in Vietnam; all four dailies had opposed his election in 1968. Pro-Republican newspapers presumably broke the Espionage Act as blatantly, yet none of them was targeted in court.34

28The judicial system needed to resolve the Constitutional conundrum immediately however, because the government warned of “irreparable harm” to national security amid all the photocopying and leaking. With such high stakes, the Supreme Court announced on Friday, 25 June, that it would hear oral argument quickly – that is, the following morning. With prior restraint upon the press imposed for the first time in American history, and with the Department of Justice claiming imminent peril to national security, the dispute between the press and the executive branch reached a level of urgency.

  • 35 Quoted in Santford J. Ungar, op. cit., 196; David Rudenstine, op. cit., 171, 281; “Espionage Act of (...)

29The brief that Bickel with Abrams prepared on behalf of the Times emphasized the vagueness of the breach of “national security.” Nor did a law like the Espionage Act, promulgated during the First World War, expressly prohibit photocopying. Section 793(e) of the statute, which the government invoked, did not even mention “publication.” Clearly secret communication with an enemy was what the law was intended to cover. The brief also pointed out that ex-President Johnson, for example, “appearing on a CBS television program, [once] brandished a document of the same vintage and on the same subject as the documents now in the possession of the New York Times (and no doubt equally classified) and read from it to the public.”35 On his own Johnson had simply decided to declassify it, and he did so with impunity. Though Bickel was representing a newspaper, he was as concerned to uphold the principle of separation of powers as he was to toughen the prohibition imposed upon Congress against making any law abridging the freedom of the press. He could not claim that the First Amendment entitled the Times to print anything or everything that it believed was fit to print, despite the famous motto of the newspaper. To convince at least five of the nine justices that the Times and the Post had acted prudently, Bickel needed to claim, in effect, that Congress might pass some laws abridging the freedom of the press. Excerpting the Pentagon Papers, however, did not require such a law.

  • 36 Sanford J. Ungar, op. cit., 218-19; John P. Roche, “The Pentagon Papers and Historical Insight,” Ne (...)

30The Department of Justice rebutted such arguments by insisting that procedures had been violated in the leakage of classified material, and that the press had recourse to the Freedom of Information Act to trigger the process of declassification, which newspaper editorials could have and should have encouraged. The Department of Defense also professed itself to be willing to examine the History of U.S. Decision-Making Process on Vietnam Policy for the purpose of omitting what truly threatened military and diplomatic activities. Yet no current military operations could possibly have been recounted in the Pentagon Papers, which was an historical record; and no newspaper ever got any portion of the four volumes devoted to diplomatic maneuvers. Not even McNamara believed that the Times had endangered national security by declassifying the Pentagon Papers. Or so he privately acknowledged after judicial intervention had blocked publication beyond the three articles and documents that the newspaper had printed on 13-15 June. The former Secretary of Defense nevertheless refused to help Bickel in the legal defense that he was mounting for the Times.36

  • 37 Quoted in Sanford J. Ungar, op. cit., 229, 302, 235; Max Frankel, op. cit., 341; Harrison E. Salisb (...)

31The battle culminating in the Supreme Court pitted the 46-year-old Bickel against the Solicitor General of the United States. Erwin N. Griswold was exactly two decades older and had been one of Bickel’s own teachers at Harvard Law School. Its longtime dean, as well as the recipient of 21 honorary degrees, Griswold was so venerable that, though Johnson had appointed him Solicitor General, the Nixon administration retained him to direct the representation of the federal government in the courts. The 13-page brief that Griswold submitted on 25 June invoked the majestic authority of the President as Commander-in-Chief of the armed forces and as the representative of the nation in foreign affairs: “In circumstances like those here, the only effective means of protecting the nation against the improper disclosure of military secrets is to enjoin their impending publication.” Griswold insisted that “to limit the President’s power in this regard solely to punishment of those who disclose secret information would render the power meaningless.” He also made an offer to show good faith. Regardless of the Court’s decision, the Department of Defense promised to re-examine the Pentagon Papers for the purpose of declassifying as much as possible, within 45 days. (Declassification would in fact take twice as long.) Meanwhile the presses had to be stopped, the Solicitor General opined, because publication “will affect lives. It will affect the process of the termination of the war. It will affect the process of recovering prisoners of war.”37

  • 38 Quoted in Sanford J. Ungar, op. cit., 231.

32Bickel countered that Congress had never authorized the use of prior restraint as a means to redress lapses in security. Even in 1950, at the peak of the Red Scare, as the brief submitted by the Washington Post also noted, an amendment to the Espionage Act was explicit: “Nothing in this Act shall be construed […] in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States.”38 Moreover the prior restraint imposed upon the Times and the Post had already lasted eleven days and seven days, respectively, while other newspapers were at that very moment excerpting the Pentagon Papers.

The Supreme Court in favor of the press

  • 39 Harrison E. Salisbury, op. cit., 335; David Rudenstine, op. cit., 301; Floyd Abrams, op. cit., 44; (...)

33Five days later, on 30 June 1971, the Supreme Court voted 6-3, to permit the newspapers to print what editors wished from the Pentagon Papers. The per curiam judgment was unsigned, probably because the rush of events had not permitted any serious judicial effort to achieve a majority opinion with a common language, prior to the summer recess of the Court. The opinion noted that the government had failed to satisfy the “heavy burden” that historical precedent required of any effort to impose prior restraint on the press. New York Times Co. v. United States (403 U.S. 713) entailed nine separate opinions. Undoubtedly the most resonant verdict was delivered by Justice Hugo Black, the most dedicated civil libertarian ever to sit on the Supreme Court. The Pentagon Papers case was to be his last opinion: “I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.” Black added that “in revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. […] The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”39 Three months later Black was dead.

  • 40 Quoted in Floyd Abrams, op. cit., 47; 403 U.S. 753-55, 758 (1971); David Rudenstine, op. cit., 314; (...)

34Justice John Marshall Harlan also delivered the last opinion that he would ever issue, but his was in dissent. A conservative, Harlan resigned two days before Black died, and passed away three months later. As recently as 1969, Harlan had acknowledged the historic Constitutional presumption against prior restraint. But he probably could not have foreseen how the Times and the Post would force the Court to reconsider that presumption. Harlan regretted “the frenetic haste,” the “almost irresponsibly feverish” pace, with which the judicial system was compelled to confront what the press was doing with those very classified documents. He asserted that the executive branch should be granted considerable latitude in determining what is secret, and that judicial overview should therefore be very narrow in its scope. It saddened Harlan that so little deference was extended to the executive branch, “a co-equal branch of the government operating within the field of its constitutional prerogative.”40 Chief Justice Burger was outvoted as well.

  • 41 Quoted in Harrison E. Salisbury, op. cit., 336, and in Katharine Graham, op. cit., 323; Max Frankel (...)

35Keeping an open phone line to Washington, Rosenthal immediately learned the verdict in New York Times v. U.S., and shouted to his colleagues: “We’ve won it! We’ve all won it!” Sulzberger professed himself to be “extremely ecstatic.” In the sixteen days between the Nixon Administration’s initial filing of a legal brief and the announcement of New York Times v. U.S., the highest appellate court had upheld the dailies’ risky course of action, even during a wrenching and controversial war. “Merely contributing to harm, or producing an eventual risk of damage, or doing damage that is not discernibly grave,” Times editor Max Frankel concluded, “are insufficient pretexts for censorship.” The Times ran a total of fifty pages on the Papers, just as it had intended, and won a Pulitzer Prize (a gold medal) for “meritorious public service,” thanks to the “investigative reporting” of Neil Sheehan. In the immediate aftermath of the Supreme Court decision, Bradlee’s memorandum to the staff of the Post could find “no way of saying how proud I am of this wonderful newspaper and everyone on it. The guts and energy and responsibility of everyone involved in this fight, and the sense that you were all involved, has impressed me more than anything in my life.”41 The Department of Justice dropped its legal actions against the Globe and the Post-Dispatch.

  • 42 Alexander M. Bickel, The Morality of Consent, New Haven: Yale University Press, 1975, 60-61.

36Four years later Bickel himself was dead. His legacy included a mellow meditation on the law, which “can never make us as secure as we are when we do not need it. Those freedoms which are neither challenged nor defined are the most secure.” (Such a criterion would have made the Tenth Amendment Bickel’s favorite.) Of course he would have rather won than lost. But because a “spell was broken,” he feared, “freedom was thus diminished.”42 Indeed, two justices who had voted in the majority in New York Times v. U.S., because of their opposition to prior restraint, had no such reservations about a prosecution of the newspapers after publication of the Pentagon Papers. Potter Stewart and Byron White explicitly drew back from the inference that punishment of the press after publication would violate the Constitution. Their opinions did not foreclose the validity of a lower standard, consisting of criminal penalties for articles already in print. Justice White even suggested that a criminal prosecution of the press for publication of the Pentagon Papers might pass Constitutional muster. This implicit invitation to prosecute the press was not taken up, however.

  • 43 Quoted in Sanford J. Ungar, op. cit., 252.
  • 44 Quoted in David Rudenstine, “Pentagon Papers,” New York Times, IV, 15, in Presses Stopped, 71, in J (...)

37However fragile the triumph of the press might be judged in retrospect, the immediate result of the 6-3 verdict led to reporters’ curiosity about the reaction of the losing side. They asked Ronald Ziegler, President Nixon’s press secretary, what his boss’s response was to New York Times v. U.S. “There is really no need for him to issue a statement on this,” Ziegler replied. “The President’s view on the First Amendment is well known.”43 What was not known, because the White House tapes were not released until the Watergate scandal erupted, was Nixon’s initial reaction to the publication of the Pentagon Papers. Whoever was responsible for releasing them, he insisted, was “criminally traitorous.” On Monday evening, June 14, Nixon had told domestic policy advisor John Ehrlichman that the Times should not be prosecuted for publishing the Vietnam archive. Instead, “my view is to prosecute the goddamn pricks that gave it to ‘em.” Who were they? That group, Nixon conjectured, seemed to consist of “a bunch of goddamn left-wingers” consorting with journalists from the Times. The President singled out Sheehan (“a bastard; he’s been a bastard for years, on Vietnam”) and “that damn Jew Frankel […] he’s bad.”44

  • 45 Quoted in Daniel Ellsberg, op. cit., 424, 425.

38The President’s claim that national security required classification of the Pentagon Papers was quite specious. Otherwise he would not have considered leaking those parts that would embarrass admirers of the late President Kennedy: “Stuff on Kennedy I’m gonna leak. We’ll just leak it out. […] We’ll leak out the parts we want.” Kissinger objected to such blatant inconsistency, however, and argued that Nixon “shouldn’t put out classified papers.” But the President was adamant: “I’m gonna put it out.” But formidable research would be required to retaliate at his Democratic predecessors and foes. “What you really need,” he told Haldeman and Ziegler, “is an Ellsberg, an Ellsberg who’s on our side; in other words, an intellectual who knows the history of the times, who knows what he’s looking for.”45

  • 46 Quoted in Harrison E. Salisbury, op. cit., 337, 339; Tom Wells, op. cit., 473, 474.

39Nixon wanted Ellsberg to be discredited, and resented what seemed to be a lethargic FBI campaign to do so. By early July the President had decided to go on the offensive against what he considered to be a conspiracy, and met with his Special Counsel, Charles W. Colson, plus Haldeman and Ehrlichman, to outline appropriate tactics. “The way we win,” Nixon told them, without any apparent awareness of the irony (or the hypocrisy), is to “leak stuff out.” By 6 July 1971, way to retaliate against the enemies of the administration was decided; a Special Investigations Unit would be formed. G. Gordon Liddy, the former FBI agent who served as the Finance Counsel to the Committee to Re-Elect the President (CREEP), proposed to name this “non-legal team” ODESSA (for the secret Nazi organization that had been created to keep the S.S. intact after World War II). Such a name would have been a bit of a public-relations problem were the cover ever blown. But because the unit was designed to plug leaks (as well as facilitate them), another designation was agreed upon: the Plumbers.46 Egil Krogh, an aide to Ehrlichman, was put in charge of Liddy and of E. Howard Hunt, Jr., the former CIA agent who served as a Consultant to the White House. Their job was to restore the secrecy that Ellsberg had punctured and to steal material that could itself be disseminated when such revelations could serve the political interests of the White House. The unit was not only clandestine; it was also quite illegal.

The Plumbers of secrecy

  • 47 Quoted in Daniel Ellsberg, op. cit., 408, 434, 440, and in Steve Sheinkin, op. cit., 251-52; Sanfor (...)

40The Plumbers did not target any of the newspapers that disseminated the Pentagon Papers. Ellsberg was not so lucky. A warrant had already gone out for his arrest. He had been charged with illegal possession of the Top Secret Vietnam study, and also with making photocopies of it. On 28 June Ellsberg surrendered to the FBI in Boston, and insisted that he was prepared “to answer to all the consequences” of what he had done. That same day a grand jury indicted Ellsberg on two counts – the “unauthorized possession” of the Pentagon Papers and the illegal conversion of the Papers “to his own use” – that is, theft. He could not yet have imagined how deeply the Nixon administration loathed the former hawk who had been the source of the leaks to the press. In the summer of 1971, Kissinger told Nixon that this “despicable bastard” was a “fanatic.” As “the most dangerous man in America today,” Ellsberg had to “be stopped at all costs,” Kissinger insisted.47 The basis for such animus remains a bit unclear. Perhaps, in a White House seething with suspicious minds, the National Security Advisor yearned to emphasize his own fierce loyalty to the President.

  • 48 Daniel Ellsberg in “Combating Amnesia: Counter-Obituaries for Richard Milhous Nixon,” Radical Histo (...)

41In Ellsberg’s own memoirs, however, which were published three decades after the unauthorized release of the Pentagon Papers, he conjectured that Nixon and Kissinger were secretly intending to continue the war until actual victory was achieved. If true, the official policy of “Vietnamization” was a cover story to conceal the unannounced aim of military victory over Hanoi. But who might have found evidence of this hidden American intention, as well as a desire to expose it? Who else but the former Rand Corporation analyst who had once been granted a stratospherically high security clearance? He might well have acquired documents that went beyond the March, 1968 cutoff date of the Pentagon Papers. Some evidence is consistent with Ellsberg’s speculation. The extension of the war in Vietnam was indeed evident in the mining of Haiphong harbor and the bombing of Hanoi--acts of escalation and devastation that Johnson had not dared to undertake. Nixon needlessly prolonged the savagery of the war, dropping 4 1/2 million tons of bombs on Vietnam out of a total of 7.3 million in the entire course of the war. (The U. S. dropped two million tons of bombs in World War II, including Hiroshima and Nagasaki.) Yet the war ended on approximately the same terms that Hanoi had offered in 1969.48 In any case Kissinger’s hysteria proved unwarranted: Ellsberg lacked documentary proof of the policy that he suspected Nixon and Kissinger were intending to implement.

  • 49 Quoted in Tom Wells, op. cit., 461, and in Steve Sheinkin, op. cit., 253.
  • 50 Ibidem, 551.

42Whatever the actual motive in refusing to let the imbroglio over the Pentagon Papers die, a wildly disproportionate state of siege was gathering momentum in the White House. As early as 22 June, Nixon told his Attorney General: “Let’s get the son-of-a-bitch into jail,” to which Kissinger added: “We’ve got to get him.” The President was seething at “that son-of-a-bitch Ellsberg.” Outright criminality would do. On 1 July Nixon told Haldeman: “We’re up against an enemy, a conspiracy,” which is “using any means. We are going to use any means. Is that clear?” The next day the President Nixon gave Haldeman instructions “to go after everyone. I’m not so interested in Ellsberg, but we have got to go after everyone who’s a member of the conspiracy. We’re going to prosecute – got to prosecute everybody.”49 The Plumbers complied. Over the Labor Day weekend, they flew to Los Angeles to burglarize the Beverly Hills office of Ellsberg’s former psychiatrist, Dr. Lewis Fielding. In rifling through these confidential files, they hoped to gather incriminating evidence against the potential defendant. Nixon later claimed that he did not learn until mid-March, 1973 of some of the specifics of the Plumbers’ burglary. In 1973, upon realizing that so little of use had been found in Fielding’s office, the President became apoplectic about “such a jackass thing.” They had found nothing, only “a dry hole.” But “such a miserable collection of shit,” Nixon grasped, was now implicating them all in a crime. This way of going after Ellsberg ranked as “the dumbest goddamn thing I ever heard of,” the President realized.50

  • 51 Michael J. Gaffney, “Legal and Constitutional Issues,” in John Prados and Margaret Pratt Porter (ed (...)

43But on 29 December 1971, the case against the most dangerous man in America still looked strong, at least according to a Los Angeles grand jury. It returned an indictment that superseded the previous one against Ellsberg. Because conspiracy charges are so convenient in tipping the balance in favor of the prosecution, Anthony Russo was added to the indictment; and both of the former Rand Corporation employees were charged with conspiracy against the United States. The indictment also included substantive charges (such as stealing, concealing and conveying secret documents) against Ellsberg, totaling twelve counts against him, with three against Russo. Never before had anyone been prosecuted in the criminal courts for a leak. Previous penalties had always been administrative; indiscreet or voluble bureaucrats had commonly been suspended for brief periods. Because classification had developed under the purview of executive branch orders, infractions were usually punished by suspensions or dismissals, rather than by hauling violators into the criminal courts.51

An Espionage Trial

  • 52 Quoted in “Court at the Crossroads,” Time, 124 (8 October 1984), 34; Sanford J. Ungar, op. cit., 29 (...)

44Nor had Ellsberg committed espionage in the normal understanding of the term. He had, after all, given copies of the Pentagon Papers to the American press, rather than to a foreign power. Instead Ellsberg was accused of having transmitted copies of the Pentagon Papers to Anthony Russo, an action that might have severely harmed national security. The two defendants were being prosecuted for purloining government property. California’s Republican governor, Ronald Reagan, denounced the publication of the “Vietnam Archive” as “no different from receiving stolen property and selling it for a profit.” Yet those fifteen sets – that “property,” as Bickel had already pointed out – remained securely in the possession of those authorized to have it. Had Ellsberg been convicted on all counts and had he been given the maximal sentence, he would have been forced to pay a fine of $120,000, with a sentence of 115 years in prison. So draconian a punishment ignited a public protest that the Department of Justice could not ignore. In a gesture of damage control designed to temper justice with mercy, the Department felt obliged to reduce the maximum jail sentence to 105 years. Russo faced up to twenty-five years in prison and a fine of $30,000.52

  • 53 Tom Wells, op. cit., 452, 544; James Spada, Barbra Streisand: Her Life, New York: Crown, 1995, 307- (...)

45The trial of Ellsberg and Russo opened in Los Angeles in January, 1973, and spanned five months. Eighty-nine days were consumed in the courtroom itself. Presiding was U.S. District Judge William Matthew (Matt) Byrne, Jr., a Democrat. In 1971, at the age of forty, Byrne had become the youngest judge ever confirmed to the federal bench. The defense ran up bills of about a million dollars, which was about a fifth of what the trial may have cost the American taxpayer. Struggling to pay the enormous bills for his defense, Ellsberg faced a hidden obstacle in the form of his father-in-law. Louis Marx objected so strongly to the crimes that Ellsberg was charged with committing that Marx refused to speak to his son-in-law and told friends that the defendant deserved a jail sentence. A multi-millionaire toy manufacturer, Marx did not give a penny to the legal defense team. The defense fund was forced to conceal the family dynamics; after all, how innocent could the defendant be if his own father-in-law welcomed Ellsberg’s imprisonment? Because sympathizers who might have helped cover the legal expenses of Ellsberg and Russo incorrectly assumed that their donations were not needed, ingenious ways of fund-raising had to be invented. Perhaps the cleverest scheme was to offer to have the donor serenaded either before a live audience of glitterati or on the telephone (for $3,000 a song) by the chanteuse who was then the most popular female vocalist in American history. Barbra Streisand thus raised over $50,000 for the defense fund. Such activism later catapulted her onto the notorious White House enemies’ list.53

  • 54 Quoted in Tom Wells, op. cit., 551; “Disagreeable to All,” Time, 101 (12 February 1973), 55; Martin (...)

46 Despite the challenges that the defense faced, the prosecution seemed jinxed virtually from the start of the trial. For example, Judge Byrne asked the government attorneys if they were aware of any official studies that showed that the publication of the Pentagon Papers had not harmed the national defense. Such documents did indeed exist, and the defense could therefore cite such exculpatory studies, which clearly sandbagged the contentions of government witnesses that the release of the Pentagon Papers had been detrimental to the national interest. But what doomed the prosecution was more egregious. On 17 March 1973, when Nixon confronted the implications of the exposure of the Plumbers’ burglary, the President feared that such news would “kill” the case for the prosecution. The break-in was so patent a violation of the defendant’s right to a fair trial, Nixon realized, that as a result “that son-of-a-bitch Ellsberg” would have “a monument” built to honor him at Harvard Square. But it took the White House more than a month--a delay that could in itself have constituted the crime of obstruction of justice--before bothering to tell Judge Byrne of the Los Angeles break-in. Even then the information was transmitted only because the information about the Labor Day burglary could no longer be suppressed.54 That sensational revelation occurred on 26 April 1973.

  • 55 Quoted in Arnold, “Ellsberg Case,” New York Times, IV, 4; David Rudenstine, Presses op. cit., 342; (...)

47On its own this disclosure might on its own have resulted in a mistrial. But a worse blow for the prosecution was soon to come. Having realized that the news of the Fielding break-in might well torpedo the prosecution, Ehrlichman and his associates had hoped to mitigate the shock. On 5 April Nixon and Ehrlichman met Judge Byrne at the Western White House at San Clemente, and two days later – at the judge’s own request – with Ehrlichman again in Santa Monica. No defense attorneys attended these two meetings. Nor did Byrne inform the defense of the meetings, during which Ehrlichman dangled before the judge the prospect of becoming the next director of the FBI. Byrne did not reject the offer outright. Nor had he bothered to tell the White House counsel that such an overture – bribing a federal judge – happens to be a felony. But news of the ex parte chat was somehow leaked to one of Ellsberg’s defense attorneys, who phoned Byrne to complain. On 11 May 1973, Judge Byrne announced that “the defendants’ rights to a speedy and fair trial” had been compromised, in part by the judge himself; and the government’s case was therefore dismissed.55 Ellsberg and Russo had no further worries of prosecution for espionage, theft and conspiracy.

From the Pentagon Papers to the Watergate Scandal

48More astonishing revelations were to come in the wake of the termination of the trial. Nine months after the illegal entry into Dr. Fielding’s office, Hunt, Liddy and others Plumbers broke into the headquarters of the Democratic National Committee, and were arrested. The line from the Pentagon Papers to the Watergate scandal and then to the only Presidential resignation in American history – on 8 August 1974 – is therefore unbroken and unmistakable. The case of the Pentagon Papers intensified the beleaguered atmosphere of the Oval Office, deepening a paranoia that had become a staple of the mentality of the White House. The formation of the Plumbers unit that was designed to smear Ellsberg churned up so many abuses of power, and activated so many criminal transgressions, that nearly all the President’s men were jailed. The Watergate scandals and the meltdown of the Nixon administration look in retrospect like an inevitable consequence of the Pentagon Papers case.

  • 56 Harrison E. Salisbury, op. cit., 336.

49Ellsberg had risked his own freedom in the effort to persuade his fellow citizens that the U.S. should withdraw quickly from a war that seemed quite unwinnable. By July 1971, according to a Louis Harris poll, a majority of Americans had come to agree that the war was immoral as well. The following month Gallup pollsters found that 61% of the citizenry favored total withdrawal from Vietnam.56 But whether the release of the Pentagon Papers made a significant impact upon public opinion, or whether the disclosures decisively shortened the war, cannot be demonstrated. But by taking seriously the ideal of popular sovereignty, Ellsberg rejected the view that statecraft is the monopoly of the executive branch; and the release of classified information was his way of preventing the nation’s leaders from deceiving the public about what was being done in its name. Reckoning with the tangle of motives and means associated with the war was a duty he did not want other Americans to duck.

  • 57 David Rudenstine, op. cit., 324-25; Tom Wells, op. cit., 502-3.

50Yet the publication of unauthorized information that might have affected national security elicited neither great curiosity nor great enthusiasm. Certainly very few Americans bothered to read the 43 volumes that were released. In late September, 1971 the Government Printing Office put up for sale (at $50) an expurgated version of the Pentagon Papers, a twelve-volume set of United States-Vietnam Relations, 1945-1967, in five hundred copies. Among the buyers was Daniel Ellsberg. But Robert S. McNamara was hardly unique in failing to read the Pentagon Papers. Even vocal opponents of the war did not do so. Because Ellsberg had risked his own liberty in the hope that popular outrage would bring the war to a close, he must have been disappointed.57

  • 58 Hannah Arendt, “Lying in Politics,” in Crises of the Republic, New York: Harcourt Brace Jovanovich, (...)

51On the other hand, the Pentagon Papers probably helped to aggravate the cynicism and the mistrust that the Watergate scandals fostered. In her critique of the History of U.S. Decision-Making Process on Vietnam Policy, political theorist Hannah Arendt observed that “the policy of lying was hardly ever aimed at the enemy (this is one of the reasons why the papers do not reveal any military secrets that could fall under the Espionage Act), but was destined chiefly, if not exclusively, for domestic consumption, for propaganda at home, and especially for the purpose of deceiving Congress.”58 The citizens and their representatives were being played for suckers. Yet many of them – the very objects of these deceptive tactics--could stir themselves only fitfully and tepidly in protest or opposition. To that extent, the inferences that might be drawn for the vitality of democracy are rather melancholy. But by personifying a “conspiracy” that a besieged President struck out wildly against, by provoking Nixon to overreact and overreach, Ellsberg did set in motion the series of crimes that Attorney General Mitchell called “the White House horrors.” They became so sinister and so blatant that correctives were inaugurated, for which the Constitutional system was designed.

  • 59 Quoted in David Rudenstine, op. cit., 6, in Daniel Ellsberg, op. cit., 457, and in Tom Wells, op. c (...)

52Though no evidence ever surfaced that the Pentagon Papers inflicted irreparable harm to national security, their publication did permanently damage the reputation of a President who happens to be unmentioned in those documents. Nixon therefore deserves the last word, because his sullen reaction to their unauthorized release provides a certain historical context. “The sonofabitching [sic] thief is made a national hero […] and the New York Times gets a Pulitzer Prize for stealing documents,” Nixon grumbled. He then wondered: “What in the name of God have we come to?”59

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Bibliographie

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ARNOLD Martin, “The Ellsberg Case Remains Closed, But Only for Him,” New York Times, 19 May 1974, IV, 4.

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RUDENSTINE David, The Day the Presses Stopped: A History of the Pentagon Papers Case, Berkeley: University of California Press, 1996.

SALISBURY Harrison E., Without Fear or Favor: The New York Times and Its Times, New York: Times Books, 1980.

SHAPLEY Deborah, Promise and Power: The Life and Times of Robert McNamara, Boston: Little, Brown, 1993.

SHEEHAN Neil, “Should We Have War Crime Trials?” New York Times Book Review, 28 March 1971, 1.

SHEEHAN, Neil, “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement,” New York Times, 13 June 1971, 1, 38.

SHEINKIN Steve, Most Dangerous: Daniel Ellsberg and the Secret History of the Vietnam War, New York: Roaring Brook Press, 2015.

SPADA James, Barbra Streisand: Her Life, New York: Crown, 1995.

TIFFT Susan E., JONES Alex S., The Trust: The Private and Powerful Family Behind the New York Times, Boston: Little, Brown, 1999.

UNGAR Sanford J., The Papers and the Papers: An Account of the Legal and Political Battle over the Pentagon Papers, New York: E. P. Dutton 1972.

WELLS Tom, Wild Man: The Life and Times of Daniel Ellsberg, New York: Palgrave, 2001.

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Notes

1 Deborah Shapley, Promise and Power: The Life and Times of Robert McNamara, Boston: Little, Brown, 1993, 376-78, 420-21, 460, 491, 599; Sanford J. Ungar, The Papers and the Papers: An Account of the Legal and Political Battle over the Pentagon Papers, New York: E. P. Dutton, 1972, 24.

2 Quoted in Floyd Abrams, Speaking Freely: Trials of the First Amendment, New York: Viking, 2005, 8; Tom Wells, Wild Man: The Life and Times of Daniel Ellsberg, New York: Palgrave, 2001, 280.

3 John Prados and Margaret Pratt Porter (eds.), “Creating the Pentagon Papers,” in Inside the Pentagon Papers, Lawrence: University Press of Kansas, 2004, 16; Leslie H. Gelb, “Today’s Lessons from the Pentagon Papers,” Life 71 (17 September 1971), 34, and “Foreign Affairs: The 100 Questions,” New York Times, 16 June 1991, IV, 17; Sanford J. Ungar, op. cit., 23; Daniel Ellsberg, Secrets: A Memoir of Vietnam and the Pentagon Papers, New York: Viking, 2002, 186; David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case, Berkeley: University of California Press, 1996, 28, 70.

4 Leslie H. Gelb, “Today’s Lessons,” Life, 34; Sanford J. Ungar, op. cit., 28; John Prados and Margaret Pratt Porter, op. cit., 17; David Rudenstine, op. cit., 21.

5 Quoted in David Halberstam, The Best and the Brightest, New York: Random House, 1972, 645; Harrison E. Salisbury, Without Fear or Favor: The New York Times and Its Times, New York: Times Books, 1980, 72n; David Rudenstine, op. cit., 27.

6 Quoted in Sanford J. Ungar, op. cit., 41 and in David Halberstam, op. cit., 633; Deborah Shapley, op. cit., 486.

7 Sanford J. Ungar, op. cit, 40-41; David Rudenstine, op. cit., 31, 35; Harrison E. Salisbury, op. cit, 60; John Prados and Margaret Pratt Porter, op. cit., 18; Tom Wells, op. cit., 193.

8 David Rudenstine, op. cit., 36, 40; Tom Wells, op. cit., 332-33; Daniel Ellsberg, op. cit., 299, 301, 303; Martin Arnold, “Daniel Ellsberg at the Trial of Anthony J. Russo,” Esquire 81 (January 1974), 72.

9 Quoted in Tom Wells, op. cit., 372; Daniel Ellsberg, op. cit., 347; David Rudenstine, op. cit., 44.

10 Ibid., 46, 47; Harrison E. Salisbury, op. cit., 63, 86-87; Daniel Ellsberg, op. cit., 372; Neil Sheehan, “Should We Have War Crime Trials?” New York Times Book Review, 28 March 1971, 1.

11 Quoted in Harrison E. Salisbury, op. cit., 93; Steve Sheinkin, Most Dangerous: Daniel Ellsberg and the Secret History of the Vietnam War, New York: Roaring Brook Press, 2015, 198, 200; Daniel Ellsberg, op. cit., 372-75; Tom Wells, op. cit., 398-402.

12 Daniel Ellsberg, op. cit., 429; Tom Wells, op. cit., 399-402; Steve Sheinkin, op. cit., 202; David Rudenstine, op. cit., 29, 85; Max Frankel, The Times of My Life and My Life with The Times, New York: Random House, 1999, 323, 325; Susan E. Tifft and Alex S. Jones, The Trust: The Private and Powerful Family Behind the New York Times, Boston: Little, Brown, 1999, 481.

13 Harrison E. Salisbury, op. cit., 15-16, 285; Steve Sheinkin, op. cit., 203; Max Frankel, op. cit., 323, 338.

14 Sanford J. Ungar, op. cit., 90; Hedrick Smith in Prados and Porter (eds.), op. cit., 66; Harrison E. Salisbury, op. cit., 5, 165; Susan E. Tifft and Alex S. Jones, op. cit., 484.

15 Ibid., 373-76, 380; David Rudenstine, op. cit., 48.

16 Ibid., 57, 61; Harrison E. Salisbury, op. cit., 126-27, 136-37; Floyd Abrams, op. cit., 11; Max Frankel, op. cit., 327; James Goodale in John Prados and Margaret Pratt Porter (eds.), op. cit., 129, 130; “The Pentagon Suitcases,” New Yorker 72 (9 December 1996), 52.

17 Quoted in ibid., 53; Floyd Abrams, op. cit., 10; David Rudenstine, op. cit., 62; Harrison E. Salisbury, op. cit., 4, 205; Susan E. Tifft and Alex S. Jones, op. cit., 487.

18 Neil Sheehan, “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement,” New York Times, 13 June 1971, 1, 38; David Rudenstine, op. cit., 1.

19 Quoted in David Rudenstine, “The Pentagon Papers 20 Years Later,” New York Times, 30 June 1991, IV, 15, in Floyd Abrams, op. cit., 14, and in Richard Reeves, President Nixon: Alone in the White House, New York: Simon & Schuster, 2001, 333; John Prados and Margaret Pratt Porter, op. cit., 78; Richard M. Nixon and Henry A. Kissinger, 13 June 1971 telephone conversation, in ibid., 97.

20 Quoted in Sanford J. Ungar, op. cit., 120.

21 Quoted in ibid., 124.

22 Quoted in Harrison E. Salisbury, op. cit., 262, in David Rudenstine, op. cit., 120, 121, and in Reeves, op. cit., 332; Harrison E. Salisbury, op. cit., 263.

23 Quoted in Sanford J. Ungar, op. cit., 113; Charles Evans Hughes, C. J., in Near v. Minnesota (1931), in Harold L. Nelson (ed.), Freedom of the Press from Hamilton to the Warren Court, Indianapolis: Bobbs-Merrill, 1967, 91-92.

24 Harrison E. Salisbury, op. cit., 242-43, 245; John Prados and Margaret Pratt Porter, op. cit., 120; Goodale in ibid., 131; David Rudenstine, op. cit., 100-1; Max Frankel, op. cit., 336; Sanford J. Ungar, op. cit., 306; Susan E. Tifft and Alex S. Jones, op. cit., 481, 492.

25 Floyd Abrams, op. cit., 7, 16; Nelson W. Polsby, “In Praise of Alexander M. Bickel,” Commentary 61 (January 1976), 52, 53.

26 Quoted in Floyd Abrams, op. cit., 23, 30.

27 Quoted in Sanford J. Ungar, op. cit., 125, and in David Rudenstine, op. cit., 106, 143-44; Floyd Abrams, op. cit., 18-20.

28 David Rudenstine, op. cit., 69, 108, 121; Daniel Ellsberg, op. cit., 394.

29 Quoted in Harrison E. Salisbury, op. cit., 10; Katharine Graham, Personal History, New York: Alfred A. Knopf, 1997, 446-47; Benjamin C. Bradlee, A Good Life: Newspapering and Other Adventures, New York: Simon & Schuster, 1995, 312-13; David Rudenstine, op. cit., 260.

30 Quoted in Benjamin C. Bradlee, op. cit., 316, and in David Rudenstine, op. cit., 131, 132, 134, 136; Katharine Graham, op. cit., 449, 450; Chalmers M. Roberts, The Washington Post: The First 100 Years, Boston: Houghton Mifflin, 1977, 416-19; Sanford J. Ungar, op. cit., 147.

31 David Rudenstine, op. cit., 186-88.

32 Floyd Abrams, op. cit., 25-30; Harrison E. Salisbury, op. cit., 304-8; Sanford E. Ungar, op. cit., 177, 179.

33 Daniel Ellsberg, op. cit., 396, 398, 409-10.

34 Quoted in Floyd Abrams, op. cit., 58; Sanford J. Ungar, op. cit., 192, 203; Daniel Ellsberg, op. cit., viii, 394, 396, 399; “Ellsberg: The Battle Over the Right to Know,” Time, 100 (5 July 1971), 6.

35 Quoted in Santford J. Ungar, op. cit., 196; David Rudenstine, op. cit., 171, 281; “Espionage Act of 1917,” in Harold L. Nelson, op. cit., 248.

36 Sanford J. Ungar, op. cit., 218-19; John P. Roche, “The Pentagon Papers and Historical Insight,” New Leader, 54 (12 July 1971), 8; Deborah Shapley, op. cit., 490-91; Harrison E. Salisbury, op. cit., 283-84.

37 Quoted in Sanford J. Ungar, op. cit., 229, 302, 235; Max Frankel, op. cit., 341; Harrison E. Salisbury, op. cit., 301, 327; David Rudenstine, op. cit., 85, 267-68, 289.

38 Quoted in Sanford J. Ungar, op. cit., 231.

39 Harrison E. Salisbury, op. cit., 335; David Rudenstine, op. cit., 301; Floyd Abrams, op. cit., 44; 403 U.S. 715-20 (1971).

40 Quoted in Floyd Abrams, op. cit., 47; 403 U.S. 753-55, 758 (1971); David Rudenstine, op. cit., 314; Floyd Abrams, op. cit., 15-16.

41 Quoted in Harrison E. Salisbury, op. cit., 336, and in Katharine Graham, op. cit., 323; Max Frankel, op. cit., 342; Daniel Ellsberg, op. cit., 413; Chalmers M. Roberts, op. cit., 422.

42 Alexander M. Bickel, The Morality of Consent, New Haven: Yale University Press, 1975, 60-61.

43 Quoted in Sanford J. Ungar, op. cit., 252.

44 Quoted in David Rudenstine, “Pentagon Papers,” New York Times, IV, 15, in Presses Stopped, 71, in John Prados and Margaret Pratt Porter, op. cit., 78, 80, 105, and in Daniel Ellsberg, op. cit., 423; John Prados and Margaret Pratt Porter, op. cit., 101, 103; David Rudenstine, Presses Stopped, 254; Tom Wells, op. cit., 487.

45 Quoted in Daniel Ellsberg, op. cit., 424, 425.

46 Quoted in Harrison E. Salisbury, op. cit., 337, 339; Tom Wells, op. cit., 473, 474.

47 Quoted in Daniel Ellsberg, op. cit., 408, 434, 440, and in Steve Sheinkin, op. cit., 251-52; Sanford J. Ungar, op. cit., 240-41; Tom Wells, op. cit., 470.

48 Daniel Ellsberg in “Combating Amnesia: Counter-Obituaries for Richard Milhous Nixon,” Radical History Review, 60 (Fall 1994), 184-86.

49 Quoted in Tom Wells, op. cit., 461, and in Steve Sheinkin, op. cit., 253.

50 Ibidem, 551.

51 Michael J. Gaffney, “Legal and Constitutional Issues,” in John Prados and Margaret Pratt Porter (eds.), op. cit., 201; Daniel Ellsberg, op. cit., 429; Steve Sheinkin, op. cit., 246, 287; Martin Arnold, op. cit., 72.

52 Quoted in “Court at the Crossroads,” Time, 124 (8 October 1984), 34; Sanford J. Ungar, op. cit., 299; Daniel Ellsberg, op. cit., viii-ix; Tom Wells, op. cit., 528-29; Martin Arnold, op. cit., 72, 74.

53 Tom Wells, op. cit., 452, 544; James Spada, Barbra Streisand: Her Life, New York: Crown, 1995, 307-8.

54 Quoted in Tom Wells, op. cit., 551; “Disagreeable to All,” Time, 101 (12 February 1973), 55; Martin Arnold, “The Ellsberg Case Remains Closed, But Only for Him,” New York Times, 19 May 1974, IV, 4; Daniel Ellsberg, op. cit., 447-48.

55 Quoted in Arnold, “Ellsberg Case,” New York Times, IV, 4; David Rudenstine, Presses op. cit., 342; Arnold, “Daniel Ellsberg,” Esquire 75; Wells, op. cit., 447-49, 551-53, 556.

56 Harrison E. Salisbury, op. cit., 336.

57 David Rudenstine, op. cit., 324-25; Tom Wells, op. cit., 502-3.

58 Hannah Arendt, “Lying in Politics,” in Crises of the Republic, New York: Harcourt Brace Jovanovich, 1972, 14.

59 Quoted in David Rudenstine, op. cit., 6, in Daniel Ellsberg, op. cit., 457, and in Tom Wells, op. cit., 555; Richard Reeves, op. cit., 331; David Rudenstine, op. cit., 72.

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Stephen J. Whitfield, « The Pentagon Papers as History »Revue LISA/LISA e-journal [En ligne], vol. 20-n°53 | 2022, mis en ligne le 20 juin 2022, consulté le 15 juillet 2025. URL : http://journals.openedition.org/lisa/13939 ; DOI : https://doi.org/10.4000/lisa.13939

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Stephen J. Whitfield

Stephen J. Whitfield is professor emeritus of American Studies at Brandeis University, in Waltham, Massachusetts, USA. He taught at Brandeis for 44 years. Whitfield also served as Fulbright visiting professor of American Studies at the Hebrew University of Jerusalem and at the Catholic University of Leuven and Louvain-la-Neuve. He twice served as visiting professor of American Studies at the University of Paris IV (Sorbonne). At the University of Munich, he taught American Jewish history. He is the author of ten books on twentieth-century American thought, culture and politics.

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