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June 17, 1967:
Defense Secretary Robert S. McNamara commissions the “Vietnam History Task Force” to compile a documentary and analytical history of U.S. decision-making in Vietnam. The commissioning is his only involvement with the project. Morton Halperin and Les Gelb are in charge of the project. Over the next year and a half, more than 36 researchers, including Richard Holbrooke and Daniel Ellsberg, will each work to write portions of the history.

February 29, 1968:
Secretary McNamara resigns to head the World Bank, partly because of disagreement about war policy.

December 25, 1968:
Daniel Ellsberg and Henry Kissinger spend four days at the New York Hotel Pierre as part of the transition reviewing A-to-Z options for Vietnam; Ellsberg’s recommendation about withdrawal is omitted from the final report sent to the President.

January 15, 1969:
Pentagon Papers are completed, with 47-volumes: 2 million words, 4,000 pages of documents and 3,000 pages of analysis. Only 15 copies are ever made:
2 copies are held by RAND; 2 in the National Archives; 2 at the State Department; 1 for new Defense Secretary Clark Clifford; 1 for Sec. McNamara; and 7 remain at the Department of Defense.  

January 20, 1969:
President Nixon is inaugurated.

January 21, 1969:
38 volumes of the papers are deposited with RAND Corporation in Washington D.C.

March 4 and August 29, 1969:
Daniel Ellsberg transports the papers from Washington DC to California for RAND in two installments.  

September, October, and November, 1969:
Daniel Ellsberg and his RAND colleague Anthony Russo copy the Papers in offices of Lynda Sinay. Ellsberg’s children often aid in the copying. Ellsberg leaves RAND offices at 11:30 p.m. with a briefcase full of documents, photocopies them, and replaces them in the RAND safe early each morning.

October 12, 1969:
Ellsberg and several RAND colleagues write a letter to the Washington Post opposing the administration’s Vietnam policies and statements.

November 1969:
A portion of the Papers is delivered to Senator J. William Fulbright, Chairman of the Senate Foreign Relations Committee, but he refrains from using them until they are officially released to him by the Defense Department. Fulbright writes to Secretary of Defense Melvin Laird requesting the documents.

December 20, 1969:
Secretary of Defense Laird refuses to release the Papers to Sen. Fulbright.

January 1970:
Ellsberg leaves RAND for MIT, and is assigned to an office directly across from war architect William Bundy. Ellsberg befriends Professors Noam Chomsky and Howard Zinn, with whom he shares the Pentagon Papers and who will eventually compose a volume of analytical essays to accompany their publication.

May 1970:
During the tumultuous month, the U.S. Bombs Cambodia, prompting resignations of key government officials; the Kent State shooting stirs campus unrest.

May 13, 1970:
Ellsberg testifies before the Senate Foreign Relations Committee, but does not disclose information in the papers.

September 1970:
Ellsberg discloses his analysis, in light of his information in an essay ‘Escalating in a Quagmire’ presented at a conference of the Political Science Association.
Ellsberg meets with Secretary Kissinger to discuss his concerns. Kissinger offers Ellsberg a position as an advisor, which he refuses.

January, 1971:
Ellsberg publicly confronts Kissinger at an MIT conference about casualty reports.

March 7, 1971:
Boston Globe carries Washington correspondent Thomas Oliphant’s story headlined “Only 3 Have Read Secret Indochina Report; All Urge Pullout,” referring to Halperin, Gelb and Ellsberg. This is first public reporting that the Report exists.

March 21, 1971:
Reporter Neil Sheehan of the New York Times checks into the Treadway Motel in Harvard Square, Cambridge, Mass. Ellsberg leads him to an apartment where he is given the Papers. Sheehan has them photocopied in Boston returns to Washington.

March 28, 1971: Sheehan’s essay about the possibility of war crimes trials for American officials is published in the edition of the New York Times Book Review.

March 31, 1971:
Ellsberg again visits Fulbright, urging use of documents.

April 5, 1971:
Sheehan and Times editor Gerald Gold rent rooms at the Jefferson Hilton in Washington, five blocks from the White House, and begin reading the documents and planning the reports.

May, 1971:
Ellsberg gives a portion of the papers to Rep. Pete McCloskey, but they were never used.

April 1971:
The headquarters for the New York Times‘ “Project X” move to five rooms on the 11th Floor of the New York Hilton, near Times Square. Sheehan is joined by Hedrick Smith, Ned Kenworthy, and Fox Butterfield.

June 1971:
General Counsel James Goodale presses for publication against the advice of outside counsel Lord, Day & Lord, whose senior partner had written the classification regulation that the Times would be violating. Goodale pushed for a one-day special supplement so as to avoid any prior restraint, but this was rejected by Times editors.
Top Times editor James Reston, who had regret the soft coverage of the Bay of Pigs invasion, promised that if the Times refused to print, he would do so in the small newspaper he owned, the Vineyard Gazette.

June 11, 1971:
Times Publisher Arthur Ochs “Punch” Sulzberger gives final approval for Pentagon Papers article and leaves for London vacation.

June 12, 1971: James Reston dictates his Sunday column, “The McNamara Papers” over the phone for publication from his mountain home in Vermont.

June 13, 1971:
The first story appears in the Sunday New York Times with a 24-point type headline “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement” by Neil Sheehan.
The first article focused on the Tonkin Gulf incident of August 1964. It describes how the U.S. conducted extensive actions, causing the South Vietnamese to raid Northern targets with the express purpose of provoking a response that would be used to justify greater U.S. participation in the war.

June 14, 1971:
The second installment of the Pentagon Papers series is published. It focused on the February 1965 decision to bomb North Vietnam, describing how the last stage of planning was cheap jerseys initiated on the day Johnson was elected despite is campaign promises not to escalate the military action. The story revealed how some aides felt that a strong show of force would oakley outlet be necessary to prevent South Vietnam from collapsing, but also feared that a strong retaliation would be equally dangerous; to prevent collapse, they committed to support Saigon. The article describes the decision process that led to the bombing campaign. Attorney General John Mitchell telegrams Times publisher Cheap Jerseys Sulzberger threatening Espionage Act prosecution if the Times does not stop publication on the ground that it would cause “irreparable injury to the United States”
James Goodale seeks aid of Yale Law Professor Alex Bickel and First Amendment litigator Floyd Abrams as counsel to the Times.
Murrey Marder, diplomatic correspondent for the Washington Post receives a 200-page excerpt from the Papers from an unknown source in Boston, but the Times publishes the same content in the next day’s installment.

June 15, 1971:
The third installment of the Pentagon Papers series is published. It describes the decision to commit ground troops, which was made on April 1, 1965, two months after the bombing campaign. It began with 3500 Marines, and then 18,000-20,000 ground troops; the report describes how by June, 200,000 troops had been requested by General Westmoreland over Ambassador Maxwell Taylor’s objections. Johnson approved the deployment on July 17.
Bickel argues the case against injunction in the federal district court in Manhattan before Judge Murray Gurfein. Gurfein, who is hearing his first case as a judge, grants a temporary restraining order barring publication.
The Department of Justice announces that it will investigate criminal penalties in association with the leak and the publication.
Secretary of State William Rogers blames the disclosure for harming U.S. relations with its allies.

June 16, 1971:
New York Times ceases publication, running instead the headline: “Judge, at Request of U.S., Halts Times Vietnam Series Four Days Pending Injunction.”
Ellsberg offers the Pentagon Papers to the three television networks, but all refuse, citing FCC license vulnerability.
Ben Bagdikian, assistant managing editor of the Washington Post, who had been studying media at RAND during the same time Daniel Ellsberg was there, contacted him and arranged to pick up the papers.

June 17, 1971:—The events described in Top Secret transpire.
Ben Bagdikian arrives at the home of Ben Bradlee, and with a gathered team of reporters and editors, dissects the papers, seeking to write a story the following day. Teams of reporters work feverishly. Publisher Katharine Graham approves publication over the telephone during a party being held at her home despite strong objection by counsel.
The Times releases a list of its documents, but not the documents themselves, to the Justice Department. Gurfein rejects the government’s request for the copies.

June 18, 1971:
The Washington Post publishes its story “Documents Reveal U.S. Effort In ‘54 to Delay Viet Election” by Chalmers Roberts. Roberts, who had personally attended the 1954 Geneva Conference, was able to report that the decision to cancel the elections in South Vietnam scheduled for 1956 was entirely the decision of Diem, though the U.S. had pushed for delay. The story also showed that a 1954 defense estimate suggested that the war could be won with seven divisions, and that in 1969 the total troop commitment was more that half a million troops (nine divisions).
The Department of Justice immediately sought a restraining order and permanent injunction. Judge Gerhard Gesell, who had himself been a reporter before becoming a judge, refused even a temporary живым restraining order.
Bickel argues before Judge Gurfein that the Post‘s decision to publish is an undue hardship on the Times. The restraining order is not lifted.

June 19, 1971:
Gurfein rules in favor of the newspapers against the government and denies the publication injunction.
Judge Irving Kaufman of the Second Circuit immediately blocked publication during judicial review of Gurfein’s decision.
The D.C. Circuit Court of Appeals ordered Judge Gesell to hold a hearing on the government’s motion against the Post, and restrained publishing until the hearing.

June 20, 1971:
The Boston Globe reporter Thomas Oliphant contacts Daniel Ellsberg and, in consultation with editor Thomas Winship from his Vermont vacation home, agrees to publish the Papers.

June 21, 1971:
In the Times case, the Second Circuit extends the restraining order and ruled for an en banc hearing.
In the Post case, Judge Gesell still refuses the restraining order after holding the hearing.  The Circuit Court granted a stay for an en banc appeal. Solicitor General Griswold will argue before the D.C. Circuit.
The Boston Globe receives the Papers, and have six hours to prepare them for publication. Matt Storin (who would later become editor of the paper), leads the team of staff members processing the documents and writing the story.

June 22, 1971:
The Boston Globe publishes “Secret Pentagon Documents Bare JFK Rule in Vietnam War,” which detail Kennedy’s direct approval for covert military operations, and Johnsnon’s turn to Vietnamization.
The Department of Justice immediately seeks a restraining order against the Globe, which is granted, and the documents are ordered to be impounded by the court. In response, Winship moves fake ray bans the document to a locker in Logan Airport.  

June 23, 1971:
In Washington, the D.C. Circuit court ruled in favor of the Post‘s right to publish, but continued the temporary restraining order to give leave for appeal to the Supreme Court.
In New York, the Second Circuit ruled that the Times could resume publication only of materials by the Government not toe be dangerous to national security, and ordered Gurfein to hold hearings to determine which parts were publishable. Both parties appealed. In Boston, Judge Anthony Julian amends his order and allows the papers to be locked in a safe at the First National Bank of Boston with access only by the Globe‘s attorney.
In Los Angeles, a federal grand jury is convened to hear charges on the criminal aspect of the leak.
The Chicago Sun-Times begins publishing its own account of the Papers, but the Justice Department does not move to prevent it.

June 24, 1971:
Several other newspapers across the country begin publications, but no Justice Department action follows.

June 25, 1971:
The Supreme Court grants certiorari on both Times and Post cases, on a 5-4 vote.  Justices Hugo Black, William Brennan, William Douglas, and Thurgood Marshall dissent.

June 26, 1971:
Oral Arguments are held in the Supreme Court. The government’s proposal for in camera arguments is rejected by a vote of 6-3. Alexander Bickel, James Goodale, and Floyd Abrams represent the Times; William Glendon represents the Post, and Solicitor General Erwin Griswold represents the Government.
In Los Angeles, a warrant issued for Ellsberg’s arrest. Ellsberg’s attorneys announce he will surrender on Monday.
The St. Louis Post-Dispatch comes under a restraining order for its publication.

June 28, 1971:
Ellsberg surrenders to the U.S. Attorney in Boston, charged with theft and unauthorized possession of classified documents. He is released on $500,000 bail.
Congress receives its copies of the Papers, which were immediately locked away.

June 29, 1971:
Alaska Senator Mike Gravel attempts to read the Pentagon Papers into the Senate record as part of his filibuster of the draft, but is denied by parliamentary procedure. He then calls a hearing of his Public Buildings and Grounds Subcommittee in the middle of the night and reads them into the record for three hours, eventually breaking down; he submits the remaining portion into the record as part of the proceeding.

June 30, 1971:
The U.S. Supreme Court allows publication, 6-3, upholding the Times and Post’s right to publish. The Globe and Post-Dispatch‘s restraining orders are dissolved.
The U.S. Attorney indicts Ellsberg in Los Angeles for two counts of theft and espionage.

August 1971:
The Los Angeles grand jury subpoenas Anthony Russo; he refuses to testify and is jailed for six weeks.

Dec. 29, 1971:
A Second superceding indictment is issued in Los Angeles naming Russo and Ellsberg as co-defendants and cheap nfl jerseys co-conspirators on 15 counts: Ellsberg, with five counts of theft, six counts of espionage, faces a total of 105 years. Russo, with one count of theft and two counts of espionage, faces 25 years.

July 29, 1972:
The Ellsberg defense team appeals to the Supreme Court due to violations committed against them of the Foreign Intelligence Surveillance Act.

Nov. 13, 1972:
The Supreme Court denies certiorari on the wiretap appeal 7 to 2.

Dec. 12, 1972:
A mistrial is declared in the Ellsberg case on grounds of delay

May 11, 1973:
Charges are dismissed against Ellsberg and Russo after Judge Byrne received a memorandum from Watergate prosecutor Earl Silbert claiming: “On Sunday, April 15, 1973, I received information that on a date unspecified, Gordon Liddy and Howard Hunt burglarized the offices of a psychiatrist of Daniel Ellsberg to obtain the psychiatrists’ filings.”

Sept. 4, 1973:
A Los Angeles grand jury indicts four men involved in burglary of psychiatrist Lewis Fielding’s office, including John Ehrlichman and G. Gordon Liddy.

June 21, 1974:
Charles W. Colson is sentenced to 1 to 3 years at the Maxwell Correctional Facility in Alabama for his role in the Fielding break-in.


Since the 1971 Pentagon Papers incident, numerous books, articles, documentaries, and memoirs have examined the events and their lasting impact. This page collects these resources and provides links to additional resources on government secrecy, ethics in journalism, the Nixon and Johnson administrations, and other related topics.

Click on the links below to skip down to the the listed resources. If you have suggestions of resources to add to our collection, please email us at topsecretplay at

Resources on the Pentagon Papers

Collections and Archives about the Pentagon Papers

Books about the Pentagon Papers

Multimedia (Documentaries, Interviews, and other Recordings) on the Pentagon Papers

News and Journal Articles about the Pentagon Papers

Books by Pentagon Papers Participants

Resources for the Classroom about the Pentagon Papers

Other Resources

Books and Resources on the Nixon and Johnson Administrations

Books and Resources about Government Secrecy Issues

Web Resources on Journalism Practice and Ethics


Collections and Archives about the Pentagon Papers

The New York Times. The New York Times has opened a “Times Topic” on the Pentagon Papers, available here, featuring collected Times articles along with links to audio of the Supreme Court arguments, the text of the Papers, and other resources. In making this site, the Times appears to have provided free access to three reflections written on the 30th anniversary of the Pentagon Papers’ publication, including one by Daniel Ellsberg, one by Les Gelb (‘primary author’ of the Pentagon Papers), and one by Tony Lewis, which included, crucially, the first reported about-face by William B. Macomber. The archive also contains a reflection by R.W. Apple on the 25th anniversary of the Papers case.


The Pentagon Papers: Secrets, Lies, and Audio Tapes is a web-based archive of the court cases that arose regarding the Pentagon Papers. Administrated by the National Security Archive at George Washington University, and curated by Thomas Blanton and John Prados, co-author of Inside the Pentagon Papers, it hosts a full set of the documents from the case itself, as well as information about how the record at the Supreme Court was compiled. Key features of the site include: court papers such as the Public Brief for the United States, the Secret Brief for the United States (submitted by Solicitor General Griswold, right), Brief for the Washington Post, Brief for the New York Times, and the Amicus brief of 27 members of Congress; Audio Excerpts and Transcripts from President Nixon’s private discussions on the Papers (including Kissinger on June 13 -revealing Nixon’s initial preference to prosecute the leakers rather than the newspapers – and Attorney General John Mitchell on June 14 -in which the telegram to the New York Times is decided upon, and in which Nixon calls the press ‘our enemies’); and Pentagon-Papers-related excerpts from the memoirs of Nixon, Kissinger, and Haldeman; and transcripts and audio files from the Supreme Court argument. (Although the oral argument is also available at, the GWU site separates them into separate .ram files for Griswold’s opening, Bickel’s statement for the Times, Glendon’s statement for the Post, and Griswold’s closing.)

The 30th Anniversary of the Pentagon Papers Conference Hosted by the Vietnam Veterans of America at the National Press Club. This event brought together a wide variety of veterans, scholars, reporters, and legal specialists. Inside the Pentagon Papers is the book version of the proceedings. A portion of a C-SPAN video is also available here.

Collected Materials regarding Senator Gravel’s edition of the Papers. Because the version of the Pentagon Papers entered into the congressional record by Alaska Senator Mike Gravel were not copyrighted, they are available on the web in both text and PDF format, making available the contents of the papers in their original format. Many find newspaper accounts more helpful in placing the events in context, but the source material is available as redacted by Sen. Gravel. A book version was published by Beacon Press in Boston under enormous pressure. Beacon Press is the independent publishing company of the Unitarian Universalist Association. The story of that publication was the subject of a Masters Thesis by Beacon Press staff member Alison Trzop. During the legal battle about that publication, the FBI illegally seized the financial records of the church, and because Senator Gravel invoked his ‘Speech and Debate Clause’ protection, the case eventually made it to the Supreme Court. The 35th anniversary of the Gravel Edition’s Beacon publication was the subject of a UUA National Meeting. Video from the event is available in excerpt versions of various lengths, a full version, and as a report by event narrator and Democracy Now host Amy Goodman.

Ellsberg.Net is the homepage for Daniel Ellsberg, which collects his writings, speeches, book reviews, and presentations. Some recent materials collected here include: Commentary on the ACLU v. NSA case, in which the ACLU tries to prevent government eavesdropping on Americans without warrants; “Where Are Iraq’s Pentagon Papers?” a Boston Globe op-ed that asks why those with information that could have, or could still, reduce casualties in the Iraq War don’t come forward with the information; audio of an interview with NPR’s Tavis Smiley; a review of Ellsberg’s memoirs in the London Review of Books; an interview encouraging leaks in the Guardian.

Books on the Pentagon Papers

The Day the Presses Stopped: A History of the Pentagon Papers Case. David Rudenstine. University of California Press, 1996. One of the most comprehensive accounts of the Pentagon Papers story, and perhaps the most definitive from a historian and legal scholar. Rudenstine, former dean of the Cardozo School of Law, was in the courtroom of Judge Murray Gurfein for the arguments depicted in Top Secret. As one of the first authors to obtain a declassified record of the secret briefs and affidavits the government presented to support its case that publication of the Papers threatened national security, Rudenstine concludes that the interests weighed in the case were less clear-cut than widely believed, with the danger to national security being, especially in the minds of the witnesses at the time, genuine and severe. The New York Times reviews the book here, and its first chapter is available here. The book grew out of Rudenstine’s 1991 article: The Pentagon Papers Case: Recovering its Meaning Twenty Years Later, 12 Cardozo L. Rev. 1869 (1991) and was the subject of a 1997 Cardozo Law School symposium that included contributions from scholars, and attorneys for the press (William Glendon) and government (Whitney North Seymour, Jr.). See Cardozo Law Review, Volume 19, Issue 4 (1998), table of contents available here.


The Papers & The Papers: An Account of the Legal and Political Battle Over the Pentagon Papers. Sanford Ungar. E.P. Dutton, 1972. This George Polk Award-winning history of the case, written by former Washington Post reporter, later head of Voice of America, and current Goucher College President Sanford Ungar, is an extraordinary account of the events that transpired both before and during the legal battle over publication, featuring excellent sourcing on the entire episode, from the newsrooms to the courtrooms. As a beat reporter assigned to the D.C. federal courts, and a member of the team that reported on the Pentagon Papers events as they unfolded, Ungar brings a unique perspective, invaluable to interpreting the events in context and providing the flavor of conversations and decision-making at the New York Times and Washington Post. Because this book was published within a year of the events, the urgency and drama in the narrative is palpable. Ungar’s 1972 essay in The Atlantic, available here, reports on aspects of the 1972 California trial of Ellsberg.


Inside the Pentagon Papers. John Prados and Margaret Pratt Porter. University of Kansas Press, 2004. This compendium of source materials and reflections resulted from a symposium held on the thirtieth anniversary of the events of the Pentagon Papers case by the Vietnam Veteran’s Association of America, and is comprised of retrospective accounts from, among others: leakers Daniel Ellsberg and Anthony Russo; reporters Sanford Ungar, Hedrick Smith, and Don Oberdorfer; Pentagon Papers authors Mel Gurtov, Herbert Schandler, and Howard Margolis; attorneys James Goodale and William Glendon; historian and law dean David Rudenstine; and former Senator Mike Gravel. The edition includes excerpts from the classified Supreme Court briefs filed by Solicitor General Griswold, transcripts of President Nixon’s telephone tapes, and other original source materials. A portion of the symposium itself, held at the National Press Club, is available here. Anthony Lewis, legendary Times columnist and First Amendment defender, provided this piece in the New York Review of Books.

The Pentagon Papers as Published by the New York Times. Neil Sheehan, Hedrick Smith, E. cheap jerseys W. Kenworthy and Fox Butterfield. Gerald Gold, Allan M. Siegal and Samuel Abt, eds. Quadrangle Books, 1971. Edited by the man who had his byline on the Times stories and led the team that won the Pulitzer for their publication, this is the book version of the Papers. It includes the articles, additional documents, maps, photographs, timelines, all creating a solid recounting of the contents of the papers and their implications for American history in a single condensed volume. Max Frankel, Times Washington Bureau Chief, concludes with an essay blending lessons of Vietnam with the lessons that came from publishing the Papers. The volume also includes the court documents.


The Senator Gravel Edition. The Pentagon Papers: The Defense Department History of United States Decisionmaking on Vietnam. Five Volumes Beacon Press, 1971. Published by the Beacon Press and subject to its own publication battle which also reached the United States Supreme Court, the ‘Gravel edition’ represents the document entered into the Congressional Record by anti-war Alaska Senator Mike Gravel, who was given a copy of the Papers by Ben Bagdikian of the Washington Post. Gravel himself excised information he deemed sensitive from the contents and used his power as chairman of the Senate Subcommittee on Public Works and Grounds to enter the papers into the record on the day the Supreme Court issued its decision lifting its injunction on the newspapers. He sought to use his ‘Speech and Debate Clause’ protection, to release as much of the full report as he could as part of his filibuster of the military’s conscription. These volumes are the most comprehensive available, though they still do not reflect the entirety of the contents of the papers. The final volume in this series includes interpretive essays by Noam Chomsky and Howard Zinn.


The Secret Diplomacy of the Vietnam War: The “Negotiating Volumes” of the Pentagon Papers. George Herring, ed. University of Texas Press, 1983. The Negotiating Volumes are the final chapters of the Pentagon Papers that were not fully published under the Senator Gravel edition or the New York Times edition because it was feared that accounts the negotiations themselves would endanger national security. Reaching nearly 900 pages, this work puts into the public arena the documentary history, identifies the operatives individually, and provides the full details that can be disclosed once ‘current affairs’ became ‘history’.

The Pentagon Papers: Abridged Edition. George Herring, ed. McGraw-Hill, 1983. University of Kentucky Professor, Guggenheim Fellow, and military and diplomatic historian George Herring uses this volume to edit an abridged version of the papers with analysis that differs in tone from the of the newspaper’s accounts, and enjoys the benefits of ten years of distance from the their first publication, allowing additional sources and revelations to be included, as well the declassification of subsequent documents.


The Pentagon Papers and the Courts: A Study in Foreign Policy-Making and Freedom of the Press. Martin Shapiro, ed. Chandler, 1972. A slim volume by a constitutional law and political science professor looks back at the Pentagon Papers case in the same way the Pentagon Papers themselves examined the Vietnam War: by examining the events from different perspectives (in this case the foreign policy establishment, the military, the newspapers, the classification and intelligence systems, and ‘news management’ aspects) laying out the documentary history (here the relevant foreign policy and government theorists and the decisions of the Supreme Court), and detailed timelines. Also similarly, the concise volumes lets the conclusions be drawn by the reader, rather than pronouncing summary conclusions on the events.


The New York Times Company v. United States: A oakley outlet Documentary History of the Pentagon Papers Litigation. Compiled and with an introd. by James C. Goodale, Arno Press, 1971. Prepared by former New York Times Vice-President and General Counsel, this volume contains all the legal papers and briefs filed in the District Court, Court of Appeals, and Supreme Court, as well as transcripts of all arguments except for those proceedings held in camera from the injunction motion to the final Supreme Court decision on June 30, 1971. It includes are Washington Post case documents, and the articles themselves, but not the subsequent Ellsberg Trial.


Frederick Schauer Parsing the Pentagon Papers. Frederick Schauer. Joan Shorenstein Center (Harvard University) Research Paper R-3, 1991. This study by former Guggenheim Fellow and current Stanton Professor of the First Amendment at the Kennedy School of Government and 2007-2008 George Eastman Visiting Professor at Oxford University was one of the first works generated by a center devoted to the study of the interplay between the press and public policy, based in the Kennedy School of Government. Notably, it was at the Kennedy School of Government that, in 1966, the idea for the Pentagon Papers study was first conceived by Secretary McNamara after he was greeted by demonstrators before lecturing at a class to be given by Henry Kissinger. This volume was published during the 20th Anniversary of the Pentagon Papers.


Let’s Go! Let’s Publish: Katharine Graham and the Washington Post. Nancy Whitelaw. Morgan Press, 1999. A young-adult title for middle school students, this focuses on the personal challenges faced by Graham, and deals with the gender hurdles she had to overcome, the personal tragedy of the loss of her husband, and her courage in steering the newspaper’s course.





New York Times v. United States: National Security and Censorship. Landmark Supreme Court Cases Series. D.J. Herda. Enslow Publishing, 1994. This young adult title, for grades six and higher, also focuses less on the newspapers and more on the Supreme Court arguments. It features timelines, photos, and basic instruction in the legal issues involved.






The Pentagon Papers: National Security or the Right to Know. Supreme Court Milestones Series. Susan Dudley Gold. Benchmark Books, 2004. Another young adult title, this title, for ages 12 and above, examines the case history as it leads up to the Supreme Court.








The Pentagon Papers: National Security Versus the Public’s Right to Know. Geoffrey Campbell. Lucent Books, 2000. This book, primarily for high school students, is part of the ‘Famous Trials: Words that Changed History’ series Photos published by Lucent, and provides a basic text of the narrative of the case. It also traces in some detail the arguments behind the parties’ legal positions.





The Pentagon Papers Trial. Kenneth Salter. Justa Publications, 1975. Developed as an educational volume for a pre-law undergraduate curriculum, this book focuses on the actual prosecution of charges against Ellsberg during his trials in California, and presents a simplified version of evidence presented (it deals only with the theft charges, not the conspiracy or espionage elements of the case). The reproduction of documentary evidence, testimony from witnesses, and motions gives a focus on trial practice.





Test of Loyalty: Daniel Ellsberg and the Rituals of Secret Government. Peter Schrag. Simon & Schuster, 1974. Told in a distinctively ironic and perceptive voice, in a tone more akin to fiction than non-fiction, Peter Schrag, a California reporter who covered the Ellsberg Trials, brings to life the personalities and events of the Pentagon Papers events, and shares his insights and suspicions about the whirl of motivations and machinations that surrounded the case and the Nixon Administration’s involvement with it. A 1971 Guggenheim Fellow, former executive editor of Saturday Review, and Sacramento Bee editorial page editor, Schrag’s account is lively and colorful.


Wild Man: The Life and Times of Daniel Ellsberg. Tom Wells. Palgrave, 2002. This biography of Ellsberg ties his actions and the subsequent cases into the larger effects on the Nixon Administration’s collapse in the years following the publication of the Papers. A useful review was published in Reason.




The Pentagon papers: national security or the right to know. Susan Dudley Gold, 2004.  A juvenile non-fiction book appropriate for teaching school children about the controversy.


Multimedia Resources on the Pentagon Papers (Documentaries, Plays, Interviews)

The Most Dangerous Man in America, a 2009 documentary on the leaking of the Pentagon Papers, by Rick Goldsmith and Judith Ehrlich premiered in New York in September 2009.  The documentary received favorable reviews from The New York Times, The New Yorker, and many others and has now been nominated for an Academy Award for best documentary.

The Pentagon Papers and What They Mean Today is a podcast of a 35th anniversary retrospective sponsored by the New York Times in which the paper looks back at the tradition of investigative journalism cheap oakleys at the paper. Coming on the heels of the Times’ Pulitzer Prize for its NSA wiretapping story, this discussion has particular topicality.  Allan Siegal one of the reporters assigned to the Pentagon Papers and now the Times’ standards editor, joins First Amendment Lawyer Floyd Abrams and NSA Wiretapping Reporter James Risen for the discussion. Moderated by Jill Abramson, managing editor of the New York Times.

The NewsHour with Jim Lehrer: Free Speech with Ben Bradlee. When PBS’s nightly news anchor sits down with Ben Bradlee, the Post’s executive editor and lead character in Top Secret, the conversation ranges from the Watergate break-in to the rush of the ‘scoop,’ to the negotiations with government sources and the press’s treatment of anonymity. With material in both audio and transcript form, the site goes far in capturing the career of the storied newswriter and newsmaker.  Special Features: a quiz about journalistic ethics in which you sit in Ben Bradlee’s shoes making the tough calls about publication of sensitive information, granting sources anonymity, and other materials.

Top Secret: The Battle for the Pentagon Papers. Radio drama, script by Geoffrey Cowan and Leroy Adams. Produced by L.A. Theatre Works, 1991. Featuring Ed Asner, Hector Elizondo, and Marsha Mason, and directed by Tom Moore, this cheap oakley sunglasses was the original audio version of Top Secret was the winner of the Corporation for Public Broadcasting’s 1992 Gold Award for the outstanding radio production of the year. It is available as an audiobook.

The Pentagon Papers, FX Television Network, March 2003. Written by Jason Horwitch, directed by Rod Holcomb, this television drama was redistributed as a DVD by Paramount Home Entertainment, featuring James Spader as Daniel Ellsberg. Ellsberg was not consulted during the production, but reviews the film here.






PBS Frontline: NewsWars is a four-part special produced for Public Broadcasting’s award-winning investigative reporting series. This series of one-hour programs examines the relationship between the press and the government, specifically the increase in secrecy in the Bush administration. The massive reporting project involved more than 50 interviews with the nation’s most prominent news figures and newsmakers. Special Pentagon Papers related features include: A page devoted to the Pentagon Papers; and interviews of Ben Bradlee, Executive Editor of the Washington Post; James Goodale, General Counsel to the New York Times.

How the Pentagon Papers Came to be Published by the Beacon Press: A Remarkable Story Told by Whistleblower Daniel Ellsberg, Dem Presidential Candidate Mike Gravel and Unitarian Leader Robert West. Radio program where participants recount the story of the Pentagon Papers.


Key Articles about the Pentagon Papers

Journal Articles

Cardozo Law Review Symposium on The Day the Presses Stopped. In 1997, Cardozo Law School’s law review hosted a symposium on The Day the Presses Stopped, the comprehensive history of the Pentagon Papers story written by then-Dean of the law school, David Rudenstine. Contributions to the symposium were published in Volume 19, Issue 4 of the Law Review as follows:

David Rudenstine. The Book in Retrospect. 1283. Dean Rudenstine reviews reactions to his book and discusses the meaning of the term ‘national security,’ the amount of discretion given to the newspaper editors by the courts, and subsequent cases in which the difference between obtaining information and publishing it has shown the press to be responsible as gatekeepers.

William Glendon. The Pentagon Papers-Victory for a Free Press. 1295. Glendon was lead counsel for the Washington Post and delivered its arguments before the U.S. Supreme Court. This concise and vivid first-person account of events provides a thorough yet intimate recounting of the events.

Joel Gora. The Pentagon Papers Case and the Path Not Taken: A Personal Memoir on the First Amendment and the Separation of Powers. 1311. Told by a former ACLU staff member who contributed to that organization’s amicus brief in favor of the newspapers, this article examines the separation of powers argument, which argued that any prior restraint is unconstitutional not only because of the First Amendment, but because prior restraint is not within the power of the Executive Branch’s inherent authority in the first place.

Fredrick Lawrence. The Collision of Rights in Violence-Conducive Speech. 1333. This more theoretical article discusses the rights of speakers to advocate speech that refrains from dismissing violence.

Aviam Soifer. Born Classified, Born Free: An Essay for Henry Schwarzschild. 1385. This article, written by First Amendment Scholar and University of Hawaii Law Dean, examines the case from the premise of how both the legal issues ‘classified’ the case into a pure prior restraint case when so many other issues were also contested (such as separation of powers), and how the governments ‘classification’ of the documents themselves changes the prospects in litigation.


Peter D. Junger. Down Memory Lane: The Case of the Pentagon Papers, 23 Case W. Res. L. Rev. 3 (1971). This law review article discusses in detail the separation of power legal concerns which were never fully settled by the court. Stanley Godofsky and Howard Rogatnick. Prior Restraints: The Pentagon Papers Case Revisited. 18 Cumb. L. Rev. 527 (1987). Media litigators from Rogers & Wells review the effect of Pentagon Papers on the law of prior restraint until 1987. Richard A. Falk. The Nuremberg Defense in the Pentagon Papers Case. 13 Colum. J. Transnat’l L. 210 (1974). Eminent Princeton legal and human rights scholar Richard Falk considers whether Ellsberg and Russo’s actions in leaking the Pentagon Papers could be considered, under international law, an effort to limit their participation in what they viewed an illegal war as Nuremberg precedent urges civilians to do.


A. M. Rosenthal. The New York Times and the Pentagon Papers: An Address by A. M. Rosenthal. University of Arizona Press, 1971. Rosenthal, then the Managing Editor of the Times, received the University of Arizona’s John Peter Zenger Award for freedom of the press on behalf of the New York Times’ publication of the Papers. A. M. Rosenthal. “Thanks to Bold Counsel, the Pentagon Papers Made It Into Print.” Editorial. Los Angeles Daily Journal 19 June 1991, 16.


Erwin Griswold. “The Pentagon Papers Case.” Supreme Court Historical Society Yearbook. 1984. 1112. In the reprint of this speech to the 1972 Association of American Law Schools Convention in New York, Griswold discussed his experiences as Solicitor General of the United States, including his involvement with the Pentagon case. Erwin Griswold. “Secrets Not Worth Keeping.” Washington Post. 15 Feb. 1989, A25. In this much-cited op-ed, Griswold, who had argued for the government, admitted that in his estimation he had never really seen a danger to national security from the publication of the Papers.


William Glendon. “Fifteen Days in June that Shook the First Amendment: A First Person Account of the Pentagon Papers Case.” New York State Bar Journal. Nov. 1993: 24. Glendon represented the Washington Post from the District to Supreme Court; in this article, he retells his experiences as well as how he became involved. This article was reprinted in the Cardozo Law Review’s symposium issue. Whitney North Seymour, Jr. “Press Paranoia — Delusions of Persecution in the Pentagon Papers Case.” New York State Bar Journal. Feb. 1994: 10. Seymour supports the government’s actions during the Pentagon case and sharply criticizes the conduct of the newspapers. This article was reprinted in the Cardozo Law Review’s symposium issue.

Newspaper Articles

Curbing the Press: Why the government and the media haven’t been this antagonistic since the Pentagon Papers case. Liz Halloran and Scott Michels, U.S. News and World Report (June 4, 2006)

linksimage015The Presses Must Roll
, by Gary Kamiya in (July 1, 2003). Salon’s executive editor, takes a look back at the case and provides a helpful overview.



linksimage016Hey, hey, LBJ, got any secrets to throw my way?
By George Wilson (July 29, 2006). Former Washington Post military correspondent George Wilson recounts the episode of his courtroom encounter with the Pentagon Papers for the Watchdog Project of the Nieman Foundation at Harvard University.

Nat Hentoff, columnist and First Amendment advocate, draws parallels between Pentagon papers and today’s issues in a two-part Village Voice column: The Enemy Within (January 21, 2007) and Afraid of Freedom? (January 26, 2007).
Public Secrets by Robert Kaiser (June 11, 2006). Long-time Post Managing Editor reviews that paper’s recent record in light of its Pentagon Papers history.


Secrets and the Press by H.D.S. Greenway (January 17, 2006). Boston Globe columnist draws parallels between NSA wiretapping story and the Pentagon Papers Cases.

Books by Pentagon Papers Participants

Secrets: A Memoir of Vietnam and the Pentagon Papers. Daniel Ellsberg. Viking, 2002. Reviewed favorably by the Dean of Columbia’s Journalism School in the New Yorker.

Papers on the War. Daniel Ellsberg. Simon & Schuster, 1972. Collected speeches and articles of the noted leaker.

Personal History. Katharine Graham. Knopf, 1997. Winner of the 1998 Pulitzer Prize for biography, this autobiography describes her years explains the public and personal triumphs of one of history’s most memorable Washingtonians. A Nora Ephron review appeared in the Times.





A Good Life: Newspapering and Other Adventures. Ben Bradlee. Simon & Schuster, 1996. The Post’s executive editor, after the Pentagon Papers, went on to leadthe Post through its next press-government crisis during the Watergate break-in. The recounting of these and other public milestones make up this textured autobiography.




First Rough Draft: A Journalist’s Journal of Our Times. Chalmers Roberts. Praeger, 1973. As the Washington Post’s chief diplomatic correspondent at the time of the Pentagon Papers, Chalmers was in the action and wrote many of the stories that would become history.



United States Attorney: An Inside View of ‘Justice’ in America Under the Nixon Administration. Whitney North Seymour, Jr. William Morrow, 1975. The U.S. Attorney prosecuted the New York Times for their publication. This autobiography also reveals disagreements between his office and the office of the Attorney General.



Speaking Freely: Trials of the First Amendment. Floyd Abrams. Viking, 2005. The Pentagon Papers case, early in Abrams career, made him one of the nation’s most sought-after First Amendment attorneys. This volume does not cover the Judith Miller/Valerie Plame cases. First Amendment scholar Geoffrey Stone reviewed it here, and the First Amendment Center also carried a review.




In Retrospect: The Tragedy and Lessons of Vietnam. Robert McNamara (with Brian VanDeMark). Random House, 1995. Selected excerpts are available.






Lyndon B. Johnson. The Vantage Point: Perspectives on the Presidency, 1963-1969. Holt, Rinehart and Winston, 1971.





Henry Kissinger, White House Years. Little, Brown and Company, 1979.






Richard M. Nixon, RN: The Memoirs of Richard Nixon. Gossett & Dunlap, 1978.






Citizen Power. Mike Gravel. Holt, Rinehart and Winston, 1972. This is the 1972 platform of the former Alaskan Senator who released the Pentagon Papers to the public record. He discusses the dangers of classification and his experience as an intelligence officer.




A Political Odyssey. Mike Gravel. Seven Stories Publisher, 2008. The former US Senator from Alaska and 2008 presidential candidate who released the Pentagon Papers writes about foreign and military policy, modern America, and the imperial presidency. This work assesses Gravel’s political and personal experiences and they individuals he knew through them.

The Supreme Court. William H. Rehnquist. Vintage. Rev. ed. 2002. The late Chief Justice of the United States was an assistant U.S. attorney general during the Pentagon Papers; he sought the injunction to stop publication. This book provides a great introduction to the Supreme Court’s role in the United States government.

Educational Resources

The L.A. Theatre Works Teacher’s Guide to Top Secret was produced in conjunction with the 1991 Radio version of the production as part of its “Alive and Aloud: Radio Plays for Learning in the Classroom” program and is suited for students in middle to lower high-school, and includes bibliography, context.

More detail on additional textbooks designed for the classroom is provided above in the “books” section:

The American Journalism Review’s “AJR in the Classroom” program provides a lesson plan for questions about how to consider whether sensitive information should be published, appropriate for journalism classes at the high school or college level. The exercise is based on an article that examines recent trends in publication or withholding of publication. Additionally, the web features examples of excellent student projects about the Pentagon Papers on the high school and college levels.

The Nixon and Johnson Administrations Generally

Robert Dallek. Lone Star Rising: Lyndon Johnson and His Times, 1908-1960 (1991); Flawed Giant: Lyndon Johnson and His Times, 1961-1973 (1998); Nixon and Kissinger: Partners in Power (2007)

Robert Caro. The Years of Lyndon Johnson (3 volumes as of 2006): The Path to Power (1982); Means of Ascent (1990); Master of the Senate(2002).

David Halberstam. The Best and the Brightest. Random House, 1972.

Bob Woodward and Carl Bernstein, The Final Days. Simon & Schuster, 1976.

Stephen Ambrose. Nixon: The Triumph of a Politician, 1962-1972. Simon & Schuster, 1989.

Seyom Brown, The Crisis of Power. Columbia, 1979.

John Lewis Gaddis, Strategies of Containment Oxford, 1982.

Raymond Garthoff, Detente and Confrontation. Brookings, 1985.

Doris Kearns Goodwin, Lyndon Johnson & the American Dream New American Library, 1977.

David Kaiser. American tragedy: Kennedy, Johnson, and the origins of the Vietnam War. Belknap, 2000.

The Administration

June 15, 1971–President Richard Nixon and Attorney General John Mitchell
are meeting in the oval office of the White House to discuss the case against The New York Times

NIXON: I don’t give a damn about the stuff in the Vietnam papers; that all happened under the Democrats. It might even be a plus. But it makes my blood boil to have those goddamn newspapers printing stolen government documents. (Press Secretary Ron Ziegler enters.) And, Ron, The New York Times is finished in the White House. No one but you and me even talks to any of those bastards. Do I make myself clear?
ZIEGLER: Absolutely, Mr. President. If those guys are aching for a fight, we’ll take our gloves off too.
MITCHELL: We’re going to go after the whole crowd.
NIXON: Wonderful. Wonderful


NIXON’S RESPONSE While leaks of information are common currency in Washington, the sheer size and importance of the Pentagon Papers and the toxicity of the relationship between the Nixon administration and the press combined to lead the administration to make a first-ever effort to restrain the press from publishing.

This particular course of action set in motion the chain of events that led to the eventual фокус Supreme Court victory for the press and the clarification that prior restraint is almost never allowed under American law, but this outcome was not a foregone conclusion.

Although President Nixon personally had a particularly adversarial relationship with the press, frequently referring to them as ‘the enemy,’ he initially found the Pentagon Papers leak politically advantageous to Republicans and harmful to Democrats. As notes taken by aide H.R. Haldeman (of Watergate infamy) disclosed in the first meeting with Nixon after he read the papers, Nixon’s desire was that “we need to keep clear of the Times series” and that “the key for us is to keep out of it.”

After discussing the matter with Henry Kissinger, Nixon’s attitude changed substantially. Kissinger pressed Nixon for action, partly because Ellsberg was seen as closer to Kissinger than any other official, with Kissinger once claiming that he had never learned more about bargaining theory from anyone other than Ellsberg. It was Kissinger’s prodding the president not to look like a ‘weakling’ that prompted Nixon to consider ‘going after’ the press.

Attorney General John Mitchell, Assistant Attorney General for the Internal Security Division Robert Mardian, and Assistant Attorney General for the Office of Legal Counsel and future Nixon-appointed Supreme Court Justice William H. Rehnquist developed the plan that would result in the Department of Justice to trying to stop publication.  It began with a telegram the Times sent to the times on the day the second story was published:

Arthur Ochs Sulzberger
President and Publisher
The New York Times
New York New York

I have been advised by the Secretary of Defense that the material published in The New York Times on June 13, 14, 1971 captioned ‘’Key Texts From Pentagon’s Vietnam Study’’ contains information relating to the national defense of the United States and bears a top secret classification.

As such, publication of this information is directly prohibited by the provisions of the Espionage law, Title 18, United States Code, Section 793.

Moreover further publication of information of this character will cause irreparable injury to the defense interests of the United States.

Accordingly, I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense.

John W. Mitchell
Attorney General

And after that move, Nixon launched a multi-pronged attack. His instruction that his staff ‘freeze out’ the Times was not unusual, nor was his willingness to politicize the leak. Many times in the past Nixon had employed ‘freeze out’ techniques to deny unfriendly reporters access to government officials. Administration control FCC licenses was also seen as an avenue for content control, and were the reason why, for example, no network news channel would allow Daniel Ellsberg on television for interviews on the night the Pentagon Papers stories were finally run in the Times. Nixon’s vice-president, Spiro Agnew routinely castigated the press in his addresses across the nation, and his anti-press stances seemed to foreshadow Nixon’s taking challenge to the Times.

On the day the Times’ second story was published, legal action had been decided as the avenue for recourse, and the Department of Justice brought a motion for temporary restraining order and permanent injunction in the New York federal cheap nhl jerseys district court.

Even after the legal action began, Nixon continued to upbraid the press, sending Secretary of State William Rogers to denounce the publication as harmful to the national conduct of foreign affairs.  Nixon instructed Haldeman to try to get the Johnson Administration officials to join him in their opposition to the leak, seeking to get Dean Rusk and Robert McNamara to oppose it, and asking Senator Barry Goldwater to specifically attack the Times publicly.  The Department of Justice officials announced they would be seeking criminal sanctions against the leakers, and a Los Angeles grand jury convened as a nation-wide FBI hunt for Daniel Ellsberg began. Injunctions were sought against the other papers that gained access to the Papers, including the Washington Post, the Boston Globe, and the Saint Louis Post-Dispatch.

Although the administration lost its legal battle when the Supreme Court ruled in favor of the newspapers, Nixon remained obsessed with the idea of executing reprisals against the leakers.  This led, in July 1971, to the formation of the White House Special Investigations Unit, “The Plumbers” comprised of aides David Young, Egil Krogh, H.R. Haldeman, E. Howard Hunt, G. Gordon Liddy, and John Ehrlich.

Among their activities, was their burglary in the office of Dr. Lewis Fielding, the psychiatrist of Daniel Ellsberg, in an effort to obtain incriminating evidence against him during his criminal trial for espionage which the administration had started under the leadership of U.S. Attorney David Nissen. The result of the break-in was the declaration of a mistrial in the Ellsberg case and the dismissal of charges against both Ellsberg and Russo.

Ultimately, the self-destructive and illegal activities culminated in the break-in to the Watergate Hotel offices of the Democratic National Committee by the Plumbers, a scandal, uncovered by the Washington Post (see the Post‘s full Watergate Archive), which, in conjunction with testimony by White House counsel John Dean before Congress and the discovery of a secret taping system, the firing of special prosecutor, and a host of other scandals, eventually lead to Nixon’s resignation.

OTHER ADMINISTRATIONSNixon’s war against the press may have been the most dramatic in American history, culminating in his resignation, but he is not alone in targeting press.  In 1942, President Franklin Roosevelt brought espionage charges against the Chicago Tribune after it cheap jerseys published an article that described the Battle of Midway in such detail that close readers could have recognized that the reporter had access to information contained by reading messages sent by Japanese forces (thereby alerting the Japanese that the Americans had discovered their code and prompting them to switch to a different code or send misinformation in the existing code language). Even though the Japanese had apparently not noticed the article at all, Roosevelt brought charges against the reporter and convened a grand jury before the charges were eventually dropped.  And after Nixon, in the administration of Gerald Ford, espionage charges were considered against New Yorker writer Seymour Hersh for his reporting on secret Navy missions.

Seeking espionage charges against reporters, rather than leakers, was a controversial strategy when it was threatened (but not attempted) by President Nixon, and when it was initiated (but not affected) by President Roosevelt.  It is different than more common cases in which a reporter simply refuses to testify in court to information about confidential sources and is punished for contempt of court (as was the case with Judith Miller, who initially refused to testify about her conversations with vice-presidential chief of staff I. Lewis Libby in the recent investigation of the leak of the identity of CIA operative Valerie Plame to columnist Robert Novak). It is also different than charging the leaker with the unauthorized disclosure of classified information, which is more common.

Under current practice, once an agency has become victim of a leak, it submits request for investigation to the Department of Justice, which routinely asks the “11 Questions” that will determine whether an investigation is appropriate. If so, the matter will be passed on to the counterintelligence division of the FBI, or, as in the case of Valerie Plame, to a Special Prosecutor.



CURRENT PROSECUTIONEspionage prosecution against reporters has been again threatened by the administration of President George W. Bush in the case of the New York Timeswarrantless wiretapping and the terror financing stories. Others have <a href="" onclick="_gaq.push(['_trackEvent', cheap ray bans ‘outbound-article’, ‘’, ‘argued’]);” target=”_blank”>argued that the current trial against lobbyists from the American-Israeli Public Affairs Committee under the espionage act could create a dangerously low new standard for such prosecutions and place reporters at risk.

With recent statements to ABC News by Attorney General Alberto Gonzalez to the effect that espionage prosecution is appropriate in some cases, the debate has reopened. James Goodale, counsel to the New York Times during the Pentagon Papers case, has recently hosted a television program on the debate.

Conservatives, however, are arguing that there are grounds for such prosecutions. This has required strong defenses from New York Times Executive Editor Bill Keller and their supporters across the journalism world, including deans of prominent journalism schools, who recently wrote to the Washington Post on the issue:


When in Doubt, Publish

By On Secrets
Sunday, July 9, 2006; B02

It is the business—and the responsibility—of the press to reveal secrets.

Journalists are constantly trying to report things that public officials and others believe should be secret, and constantly exercising restraint over what they publish.

Most Americans want their government to be held accountable, which is the raison d’etre of watchdog journalism. At the same time, they do not want the press to disclose government secrets that are vital to national security.

The journalist’s dilemma, then, lies in choosing between the risk that would result from disclosure and the parallel risk of keeping the public in the dark–a quandary that has become all the more pointed since the attacks of Sept. 11, 2001. As deans charged with imparting the values of journalism to the next generation of reporters and editors, we favor disclosure when there are not strong reasons against it.

That issue is front and center again because of the June 23 articles in the New York Times, the Los Angeles Times and the Wall Street Journal describing the government’s efforts to track terrorist financing. The New York Times has attracted most of the outrage because it took the lead in investigating the system.

It is appropriate for Americans to be concerned when news organizations publish information that the president and others in authority have strongly urged not be published. No sane citizen would wish the media to provide terrorists with information that would be likely to endanger Americans.

President Bush has denounced the Times in exceptionally harsh language, and on June 29 the House formally condemned the paper. Some critics of the Times have termed its actions “treasonous” and called for criminal charges under the Espionage Act. One conservative commentator told the San Francisco Chronicle that she would happily send Bill Keller, the paper’s executive editor, to the gas chamber.

Keller has characterized the decision to publish the information as a “close call,” making this an especially important example to examine. Despite its security concerns, the public has shown steady support for the media’s watchdog role. Earlier this year, a survey by the Pew Research Center for the People and the Press found that 56 percent of respondents said it was very important for the media to report stories they believe are in the nation’s interest. A third of respondents ranked government censorship on the grounds of national security as more important. The public wants the press to keep a sharp lookout, but wants the job performed responsibly. We share this sentiment.

In the case of the stories about financial data, the government’s main concern seemed to be that the hitherto cooperative banks might stop cooperating if the Times disclosed the existence of their financial tracking system. So far, that apparently has not happened.

For many Americans, however, the possibility of damage to terrorist surveillance should have been sufficient justification for the Times to remain silent. Why, they ask, should the press take such a chance?

There are situations in which that chance should not be taken. For instance, there was no justification for columnist Robert D. Novak to have unmasked Valerie Plame as a covert CIA officer.

We believe that in the case of a close call, the press should publish when editors are convinced that more damage will cheap oakley sunglasses be done to our democratic society by keeping information away from the American people than by leveling with them.

We know from history that the government often claims to be concerned about national security when its concern is that disclosure will prove politically or personally embarrassing. The documents that came to be known as the Pentagon Papers in 1971 told how Presidents Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had misled Americans about our role in the Vietnam War. Hence the classification of their contents.

In the aftermath of 9/11, a new climate of caution was a sensible response to a sophisticated terrorist foe. But Bush’s reaction–declaring a “war on terror” and claiming the Constitution grants almost limitless powers to the president in a time of war–is excessive. His administration has been aggressively restricting access to information on the grounds of national security. For example, earlier this year historians complained that intelligence agencies were removing previously declassified documents from archives. Some of these papers dated as far back as the Korean War; many had been cited multiple times in books.

In general, the administration has sought to conduct much of what it calls the war on terror in secret, and it has been able to do so with little oversight from Congress, which would normally be a key check on power. When the press has played such an oversight role, it has often been harshly criticized.

For instance, a few months ago Bush denounced the Times for revealing the National Security Agency’s program of monitoring international telephone calls by Americans without first obtaining warrants, as the law requires. In that case, Bush rebuked the paper for revealing a classified secret. For most observers, however, the most important secret that was revealed was that the president had ignored the statutory process that Congress had established.

Despite the rhetoric of their fiercest critics, most journalists take secrets seriously. Indeed, in a number of cases since 9/11, many news organizations, including the Times, have forgone publication of information at the request of the Bush administration. The Times held the article on domestic eavesdropping for a year, publishing it only after the paper thought that the issues raised were of great importance.

We believe that the extraordinary power of the presidency at this oakley outlet moment mandates more scrutiny rather than less. Yet Attorney General Alberto R. Gonzales has said he would consider prosecuting journalists for publishing classified information. Such an action would threaten to tilt the balance between disclosure and secrecy in a direction that would weaken watchdog reporting at a time when it is badly needed.

We subscribe to the vision of Carl C. Magee, a crusading journalist whose Albuquerque newspaper infuriated another president in the 1920s with revelations in the Teapot Dome scandal. Forced to close his paper after being driven to bankruptcy, Magee emerged two months later with another newspaper.

Emblazoned on the front page was a new motto, borrowed from Dante: Give Light and the People Will Find Their Own Way.

Geoffrey Cowan, dean
Annenberg School for Communication
University of Southern California

Alex S. Jones, director
Shorenstein Center
Harvard University

John Lavine, dean
Medill School of Journalism
Northwestern University

Nicholas Lemann, dean
Graduate School of Journalism
Columbia University

Orville Schell, dean
Graduate School of Journalism
University of California at Berkeley

The Documents

Senate Majority Leader Mike Mansfield (D-MT), Senate Speaker Pro Tempore Allen Ellender (D-LA), and Senate Minority Leader Hugh Scott (R-PA) receive their first copies of the Top Secret Pentagon Papers—June 28, 1971, Washington Post 

Scene 13: June 21, 1971—The courtroom. The Administration lawyers have just gone through an elaborate process of clearing the courtroom, bringing in a locked briefcase and a sealed envelope to present a document. Wilson frantically tries to recall where he has seen the supposedly secret document before.  WILSON:  (Excitedly interrupting in a loud whisper.) Brian, here it is! I found it in the open literature. (He shoves an open book at Sullivan.) SULLIVAN:  Your honor, could you excuse us for a moment? (Quickly passing from incredulous, to stunned, to thrilled as he scans the page.) Incredible. (Then, barely able to contain his excitement.) Your honor, this may be a sensitive document. Maybe it should even be a secret document. But it’s not a secret, despite the Academy Award-winning performances we have witnessed here this afternoon. The government gave this precise document to the Senate Foreign Relations Committee. Congress published it in a Hearing Report. (He hands the report up to the judge.) This is the Report of the Senate Foreign Relations Committee for February 20, 1968. I call your attention to page 34. This so-called secret document has been available to the public–and, need I add, to our enemies–for more than three years.


“The Pentagon Papers” as a term references the 7,000-page, 47-volume, 2.5 million-word product of the “Vietnam History Task Force.” Half documentary archive, half history, the work was written from 1967 to 1967 at the request of Secretary of Defense Robert S. McNamara (pictured to the right with Pres. Johnson). The inspiration for the study came from faculty members at the Harvard’s Kennedy School of Government where McNamara visited in November 1966, and where he was subject of protests by students; McNamara was urged to undertake a study of the decision-making process on Vietnam, modeled on the study of Kennedy administration’s rift with the British during the Skybolt Crisis written by former Kennedy advisor and then Kennedy School Dean Richard Neustadt.  The task was of compiling the report to the Morton H. Halperin, deputy director of the Department of Defense’s International Security Affairs (ISA) office; primary responsibility for the project’s editing fell to Les Gelb of the. Over 36 researchers contributed throughout the course of the project, including:

Morton Halperin, then and now: Halperin’s work on the Pentagon Papers began after he had finished teaching for six years at Harvard. In the years since, has enjoyed one of Washington’s most distinguished careers, holding top posts at the ACLU, Century Foundation, Council on Foreign Relations, Carnegie Endowment for Peace, Brookings, and the Center for American Progress.

    • Richard Ullman, history professor at Princeton University
    • Melvin Gurtov, defense expert from RAND
    • Hans Heymann, RAND economist and expert on Soviet air power
    • Richard Moorstein, former International Security Affairs staffer that the Pentagon
    • Richard Holbrooke, young foreign service officer who had been on the staff of Vietnam Ambassadors Max Taylor and Henry Cabot Lodge and was serving as staff to Undersecretaries of State Katzenbach and Richardson, and who would go on to become U.S. Ambassador to Germany and the United Nations and negotiator of the Dayton Peace Accords that ended the war in Bosnia.
    • Richard Balzhiser, a White House Fellow
    • William Kaufman, from the Brookings Institution and MIT
    • Howard Margolis, researcher from the Institute
    • Martin Bailey, a former special assistant to the Secretary of Defense.
    • Col. Paul Gorman, counterinsurgency expert who later went to the Paris Talks
    • Maj. Charles Cooke, Vietnam assistant at ISA
    • Col. Robert Gard, military advisor to Secretary McNamara
    • Daniel Ellsberg, the RAND researcher who eventually leaked the papers

Les Gelb, then and now: Gelb was awarded a Distinguished Service Award for his work at the Defense Department, and in 1973 left to become a correspondent for the New York Times. After serving in the Carter Administration as Assistant Secretary of State, he returned to the Times in 1980s becoming deputy editorial editor, winning a Pulitzer Prize, and in 1993 became president of the Council on Foreign Relations. He wrote The Irony of Vietnam: The System Worked in 1980.



The “History of U.S. Decision-Making Process on Vietnam Policy, 1945-1967” when finally finished represented one of the most thorough retrospective studies for war decision-making, and was used as a basis for strategizing by government officials. Henry Kissinger, himself a consultant on the writing of the Papers, referred the final four-book ‘Negotiating Volumes’ as he formulated his own negotiating tactics in later years. McNamara did not himself have any involvement with the study other than commissioning it, and had resigned as Secretary before its completion Such a study was of remarkable nature because it brought together documents from across the government, from different agencies in one massive study. Ordinarily, such documents would have remained in the separate archives of the authors or recipient, been subject to loss or destruction, or simply never have been weaved into a single coherent retrospective narrative.  The research was conducted in confidence, researchers were promised anonymity, and the writers were not allowed to contact the authors for supplementary interviews for fear of disclosure.  THE CONTENTS Because of the size of the study and its efforts to track events reported to the public as well as the private communications of government officials, the report included both confidential and non-confidential information.  One of the main overarching themes of the collection was that succeeding American presidential administrations approached Vietnam with a narrow ‘domino effect’ worldview that both publicly and privately failed to distinguish between the different kinds of communist regimes, and assumed that the North Vietnamese were a puppets or clients for the Soviet regime. Because of this posture, each administration made choices, in steady but not necessarily intentional fashion, which eventually closed off options other than confrontation and eventual broad military engagement.  The leak of the Papers represented a challenge to the government because in many cases, through several administrations, the covert operations and objections did not match the public statements on the war. Information in the papers explained several previously expected but unconfirmed realities:

  • President Truman had directly involved the U.S. in Indochina by aiding France in its colonial war and set the course of American policy.
  • President Eisenhower had intentionally undermined the Vietnam Peace Conference in Geneva in 1954 because of a desire to try to rescue a fledgling South Vietnam from Communist takeover. Secret acts of sabotage and terror warfare began in 1954.
  • President Kennedy had expanded involvement to the level from ‘limited-risk’ to ‘broad commitment’. Efforts in 1963 encouraged and abetted the overthrow of President Diem.
  • President Johnson had long waged a covert war and had planned an overt war long before admitting as much to Congress or the public.
  • The controversial American strategy of bombing North Vietnam was completely ineffective militarily, but pursued only for the purpose of ‘provoking’ the North to attack as a way to justify a broader American involvement.
  • The infiltration of arms from North Vietnam into South Vietnam was not an important military problem for the Southern insurgents, but used as a justification for further U.S. involvement.
  • The continuance of air and ground attacks despite internal estimations that neither would achieve the desired result.  As Gelb described in his transmittal letter, the report was “not so much a documentary history, but a history based solely on documents–checked and re-checked with ant-like diligence.” The papers often featured ‘development of a decision’ or ‘development of the policy’ segments, which included a chronological log of memoranda, tracing the development of Cheap NFL Jerseys an idea from proposal to action plan.  The papers themselves included names of CIA agents, cables from diplomatic representatives to and from presidents, information on troop locations, and discussions about nations that covertly supported the U.S. involvement despite public opposition. All such information was excised from both the newspaper reports as well as eventual published versions (such as the Gravel edition). In the New York Times’ eventual book version, the perspective of Times reporters is incorporated; in the Gravel edition volumes (which are available online), there are concluding essays by Noam Chomsky and Howard Zinn to help readers understand the important points within the vast amounts of information available in the report itself. THE CLASSIFICATION SYSTEMThe Pentagon Papers themselves were marked “Top Secret–Sensitive” a classification that itself did not exist at the time. One of the challenges that Pentagon Papers cheap jerseys raised was whether all the information contained within need in fact to be secret. Early in the crisis over publication, the government offered to ‘review’ the information and begin to re-classify the information, but the charges of theft and unauthorized classified information remained in place against the leakers.  Under current U.S. law, there are three classification levels of classification:
  • “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
  • (2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
  • (3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.  However, there is also the practice of “derivative” classification, in which an entire document, report, or compilation is deemed classified even though only portions of it contain secret information, which is why newspaper articles, congressional transcripts, and otherwise public reports are often marked ‘confidential.’ The theory is that information in such reports ‘connects the dots’ in ways that would not be ascertainable to the general public without government expert analysis, and that the disclosure of the decision-making and analytical process itself would present a risk.  The Pentagon Papers occasioned a debate on whether changes to the classification system were necessary, and the debate continues today. The head of the National Archives and Records Administration’s Information Security Oversight Office (ISOO) has himself often expresses the belief that documents are overclassified.  In 2006, 20.3 million documents were marked classified, compared with 13.9 million in 2005, or 15.6 million in 2004.  And the effort to declassify documents once their perceived threat has passed is also slowing down substantially: for example in 2006, only 36.7 million documents were in fact declassified, compared with an average of about 188 million declassifications per year for the years 1980-1994, jordan sale or the recent 1997 high of 204 million documents declassified.  Finally, the cost of securing classified information, which involves safeguarding facilities and personnel, has increased steadily from $3.4 billion in 1997 to $6.5 billion in 2003 to $8.2 million in 2006. And the amount of money spent on declassifying documents has been steadily reduced, from $113 million in 2002 to $54 million in 2003. By comparison, $231 million was spent in 2000. Several congressional committees are investigating methods of improving this system, and in December 2007, the Public Interest Declassification Board issued a new Report to the President on this topic.  cheap nhl jerseys The battle over classification and declassification is substantially active. As recently as June, the Office of the Vice President refused to report its classification activities to the ISOO, prompting Congressional investigation.There are, however, encouraging signs from other parts of the administration.  In June 2007 the CIA released two large batches of previously classified documents, including a collection of historically relevant classified documents referred to as “Family Jewels” as part of what it called its “social contract with the American people.” Request for government information are made through the Freedom of Information Act, the federal law signed by President Johnson on July 4, 1966, that provides public access to government documents. The Act has been amended several times, most recently in 2002 when the law blocked foreign governments or agencies or representatives from submitting FOIA requests. The ability for individual citizens, organizations, businesses (who comprise 60 percent of requests), and the press (who comprise 6 percent of requests) to access federal government documents hinges on FOIA, but many times costs, delays, exceptions, and exemptions can make it difficulty to obtain the needed documents. State documents are available through their own open records statutes. In Fall 2007, a Congressional Conference committee met to consider the Senate and House versions of reform bills earlier this term, in an effort to improve and streamline the FOIA process, and the bill was signed into law at the end of 2007.MILITARY STUDIESAs a military study, the Pentagon Papers represented a retrospective sweep that was impressive in nature and provided a great deal of insight into the bureaucratic decision-making process. Such a study was unusual not only because of the amount of time and energy devoted to it, but because it was retrospective rather than prospective, and it exposed the official who commissioned it, Secretary McNamara, to criticisms. Laying bare the decision-making process exposed flawed logic and reasoning, as well as blind spots in judgment.  If a Vietnam History Task Force-style comprehensive study could be undertaken in advance of military decisions instead of after them, could this kind of prospective planning be beneficial to strategic planning?  Blind Into Baghdad, by James Fallows of Atlantic Monthly of January 2004, describes the process of the “Future of Iraq” project, undertaken by the State Department before the Iraq war, and how an extensive planning effort in that engagement was, in the end, never used or followed to the extent desired:  […] The State Department first publicly mentioned the project in March of 2002, FOR when it quietly announced the lineup of the working groups.  […] The Future of Iraq project held the potential for harnessing, and perhaps even harmonizing, the expertise available from the exile groups.  It was also in keeping with a surprisingly well established U.S. government tradition of preparing for postwar duties before there was a clear idea of when fighting would begin, let alone when it would end. Before the United States entered World War II, teams at the Army War College were studying what went right and wrong when American doughboys occupied Germany after World War I. Within months of the attack on Pearl Harbor a School of Military Government had been created, at the University of Virginia, to plan for the occupation of both Germany and Japan. In 1995, while U.S. negotiators, led by Richard Holbrooke, were still working at the Dayton peace talks to end the war in the Balkans, World Bank representatives were on hand to arrange loans for the new regimes.  […] Eventually there would be seventeen working groups, designed systematically to cover what would be needed to rebuild the political and economic infrastructure of the country. “Democratic Principles and Procedures” was the name of one of the groups, which was assigned to suggest the legal framework for a new government […] The “Transitional Justice” group was supposed to work on reparations, amnesty, and de-Baathification laws. Groups studying economic matters included “Public Finance,” “Oil and Energy,” and “Water, Agriculture and Environment.” […] But whatever may have been unrealistic or factional about these efforts, even more of what the project created was impressive. The final report consisted of thirteen volumes of recommendations on specific topics, plus a one-volume summary and overview. These I have read—and I read them several months into the occupation, when it was unfairly easy to judge how well the forecast was standing up. (Several hundred of the 2,500 pages were in Arabic, which sped up the reading process.) The report was labeled “For Official Use Only”—an administrative term that implies confidentiality but has no legal significance. The State Department cheap jerseys held the report closely until, last fall, it agreed to congressional requests to turn over the findings.

The Courts

The Courts

The Burger Court of 1971

“A cantankerous press, an obstinate press, an ubiquitous press, must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.  These are troubled times.  There is no greater safety valve for discontent and cynicism about the affairs of government than freedom of expression in any form….” – U.S. District Judge Murray I. Gurfein in rejecting the government’s initial prior restraint motion

The Pentagon Papers, formally New York Times Co. v. United States (No. 1873) and United States v. Washington Post Co., et. Al (No. 1885), represented one of the most remarkable cases in American history, in which the Supreme Court decided on First Amendment Grounds that prior restraint could not prevent publication of the Pentagon Papers, even though the information related to oakley outlet defense and national security.  The case itself, from complaint to the U.S. Supreme Court decision, was decided in less than 16 days, a speed nearly unprecedented in U.S. history.

Top Secret describes a successful court battle played out by the Washington Post in the courtroom of a fictional judge Martin Peel, but that was only the tip of the iceberg for this legal whirlwind; although Top Secret ends with a victory party, the Post was in fact enjoined from publication by a temporary restraining order granted by the District of Columbia Court of Appeals, and, like the New York Times, was prohibited from publishing their next story about the Pentagon Papers until July 1.  At the time of the Post’s hearing, the Times had been fighting its own legal battle for five days, which had been tipped off, on the day of their second story, with a telegram from Attorney General John Mitchell ordering them to cease publication or face prosecution under the Espionage Act.  While there had been controversy in advance of publishing at the Times because of the risk just such legal action, editors had decided to go ahead anyway. On Monday afternoon when the telegram finally came, editors responded to the Attorney General’s office by declaring that they would not comply with the telegram’s instruction, but would only stop publication if such an order came as a result of valid court action. A hearing was held the next day in the federal district court.  When the Times then went to notify their attorneys from the venerable firm of Lord, Day, & Lord, the firm refused to represent them because one of its senior partners Herbert Brownell, as Attorney General under President Eisenhower, had signed the classification order that the Times would be violating with their action.  That night Yale Professor Alexander Bickel, and young First Amendment litigator Floyd Abrams were contacted to comprise a new legal team. The choice of Bickel was at first controversial because he was not an experienced litigator, nor a particularly strident freedom of speech defender; his academic writing who had advocated judicial restraint, particularly from political matters, and thus was less a natural choice than, say,

Thomas Emerson, also of Yale Law School, who himself would eventually file an amicus brief in the Supreme Court on behalf of Members of Congress. It happened however, that Bickel had been having lunch on the day the Pentagon papers were published with James Goodale, general counsel to the Times (they were discussing the case of Earl Caldwell, a Times reporter who was resisting court pressure to turn over source material of his reporting of gangs in California, and whose case eventually become part of Branzburg v. Hayes, the Supreme Court case that rejected the concept of a “reporter’s privilege.”).  In the initial hearing for the Times, Judge Murray Gurfein (pictured right), who himself was serving his first day on the bench as a federal judge, listened to the arguments. Gurfein had been a former prosecutor, and had work with Justice Robert Jackson on the Nuremberg trials. In the arguments Bickel, who had taken the case as a Supreme Court expert, carefully structured his arguments so that the ultimate conclusions would be both favorable to appeal to the Supreme Court and would gain the votes of the needed justices. However, this strategy focused on long-term victory and short-term defeat, resulting in a temporary restraining order barring publication, and creating the first-ever government imposed prior restraint.  No Pentagon Papers article appeared the next day, and instead, the Times, in accordance with the court’s order, turned over a list of the contents of its papers to the Department of Justice, but not the originals, for fear of fingerprint or other analysis that might have given away the source.  A hearing on the matter was heard by Gurfein that Friday in both open and closed session. Testimony was given for the Government through live witness who spoke to the contents of the Papers, including Deputy Assistant Secretary of Defense Dennis Doolin (who testified in both sessions, with as unhelpful a performance as depicted in Top Secret). For the defense, affidavits were submitted by reporters and editors. The Papers were also in the courtroom under guard by a Marine officer before being submitted into evidence, under seal from both the public and defense. The hearings lasted well past 11 p.m., with Gurfein to issue his decision the next day.  But as Gurfein was holding his hearings, the Washington Post became the second paper in the country to publish the Pentagon Papers, and that paper was also prosecuted; brought to the federal district court in Washington, it had Pharmacie to defend against the government’s motion for an injunction. Instead of simply joining the Post to the Times case, the Department of Justice decided that it would be better to keep the two cases on separate tracks. But the Post case was assigned to Judge Gerhard Gesell, a lucky draw for the newspaper, as Gesell himself had at one time been a reporter for the Times and in the course of his private practice once helped to represent the Post on another matter years earlier. Roger Clark, representing the Post, had a much easier time than Kevin Maroney, who was arguing for the government, and in the end, Gesell refused to order even a temporary restraining order, arguing that prior restraint was impermissible as a matter of law. Within two hours, a panel of three court of appeals judges for the D.C. Circuit was assembled, and began consideration of the order. After hours of discussion, the court finally ruled, at 1:30 AM, overruling Gesell’s order, imposing an injunction, and ordering the Gesell to hold evidentiary hearings. It was this ruling that had literally ‘stopped the presses’ at the Post, which by that time had already been churning out copies of the next day’s papers with the second installment of the series. After rushing for a clarification, the court allowed that installment to be printed, so the Washington Post for Saturday, June 19 carried one headline announcing the court’s restraint on publication across the front of the same page on which one such prohibited article appeared.  The day after the Post had its presses stopped, Judge Gurfein ruled in the Times case, in language that was more that was much more favorable, arguing that a ‘cantankerous,’ ‘obstinate,’ and ‘ubiquitous’ press was essential for the workings of democracy and rejecting the injunction. The prosecution team, led by Whitney North Seymour immediately appealed, and Judge Kaufman of the Second Circuit immediately extended the restraining order until Monday so that he could summon a three-judge panel over the weekend to hear the appeal, and eventually an en banc hearing would be scheduled for that Tuesday.  Back in Washington, Gesell was annoyed at being ordered by the Circuit Court’s order to hold hearings, and sought to do so as quickly as possible. He held two conferences in advance of a Monday hearing to be held in both open and closed session. When Gesell ordered the government to produce the individual who had ordered the document classified, the government claimed that it did not know, but instead produced affidavits from witnesses, including Doolin. But in the end, Gesell still ruled against the restraining orders Both cases were now before en banc panels of appeals courts at the same time.  In the Second Circuit case, Bickel’s team had produced an 83-page brief and Seymour’s office producing a top secret “Special Appendix” that detailed the national security implications of the publication. At argument, Bickel was continually questioned heavily by Chief Judge Friendly, and the prospects for the case were looking dim, with the panel prompting the prosecutor into a recitation of the many lawful channels for obtaining government documents, including the FOIA law.  In the D.C. case, the Justice Department asked Solicitor General and former Harvard Law School Dean Erwin Griswold to argue the case personally, though was also faced a much more hostile bench, with Judge Roger Robb asking, given the multiple newspapers now publishing, whether the government wanted the court to “ride herd on a swarm of bees.” Both courts extended the temporary restraining orders before deliberating. In the end, the Second Circuit voted 5 to 3 to send the case back to Gurfein for more review of material presented in the Special Appendix, with ruling due in 10 days. The D.C. Circuit eventually voted 7 to 2 against the restraining order and in favor of the Post.

Both cases were appealed, and at the June 24 conference, with several justices voting by phone since they had already left for vacation on what was to be the last Friday of the term, the Supreme Court voted 5-4 to hear the case the following day, with briefs due.  In granting certiorari, the court also gave the condition that the newspapers could resume publishing, as long as the information that the published did not appear on a list of particularly harmful documents prepared by the Justice Department, but when prepared the list was so long that the newspapers refused to accede such editorial control, and did not publish any further articles.  At the start of oral arguments, the Court announced that it would not be holding any part of its session in camera, as the lower courts had done, but it accepted a “Secret Brief” prepared by the government. Arguments featured Griswold for the Government, Bickel for the Times, and William Glendon for the Post. (Griswold had been wholesale nfl jerseys one of Bickel’s professors when he was a student at Harvard Law School). Although Griswold focused on the stolen nature of the documents, and Bickel was forced to concede that there could be some cases in which prior restraint for preservation of life was desirable, both sides were criticized by First Amendment purists like Justice Black and Justice Douglas.  The decisions followed three days later, with ten separate decisions: one per curiam decision of the court, and each Justice writing separately. Several summaries of the decisions are available. Because of the wide range of views even among the majority, the case law left several unanswered questions, but it did settle, by a vote of 6 to 3, that newspapers were free to resume publication.

(Justice William Douglas pictured below)

The most recent prior restraint case the court looked to was Near v. Minnesota, from 1931 in which a state statute that permitted injunctions against publications of ‘malicious, scandalous and defamatory’ nature, was struck down. In that case, a county prosecutor had sought to enjoin publication of a local newspaper in Minneapolis that accused ‘Jewish gangsters’ of committing a string of crimes and the local police for supposedly cooperating with the ring.  The Court struck down the law, removed the injunction, and declared prior restraint as an extreme measure not to be employed except in the rarest of circumstances.  But in its briefs and arguments all levels the Government had seized on lines in the opinion by Justice Charles Evans Hughes:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not ‘protect throwback nba jerseys a man from an injunction against uttering words that may have all the effect of force.’

Although these lines were dicta, and therefore not binding as matters of law (they were followed by the line: “These limitations are not applicable here.”), the government sought to assert that the Pentagon Papers would fall within this class of cases.  The Court roundly rejected that claim, found that the wartime publication was not a substantial factor for their consideration, and determined that the government had failed to meet its burden of proving that the publication would lead to irreparable harm to the nation.  The following day, publication resumed. Prior restraint has never been successfully achieved since.

On the same day that the Supreme Court vindicated the rights of newspapers to publish the information leaked to them by inside government sources, that same source, Daniel Ellsberg, was charged with theft and espionage.  The criminal trial which followed, in which Ellsberg was defended by Harvard Law Professor Charles Nesson and anti-war attorney Leonard Boudin, was prosecuted by U.S. Attorney David Nissen. The case was heard by Judge William Byrne, Jr., a former prosecutor who had been the youngest judge appointed to the federal court at the time, and was in his first year on the bench; the judge’s father, William Byrne, Sr., was also a judge in the same court, with a courtroom just down the hall from the younger Byrne’s.  From the start, however, the case was plagued with delays. In August, Anthony Russo, an Ellsberg associate, refused to testify and instead served six weeks in jail as result of a contempt order. When it was determined that he would not speak, after those six weeks, a second superseding indictment was delivered, naming him as a co-conspirator, and charging Ellsberg with crimes of maximum of 115 years and Russo with 25 years.  The trial didn’t begin in earnest until the middle of 1972, and then in the middle of the trial, Ellsberg had reason to believe that his phone calls had been intercepted, and raised an objection under cheap mlb jerseys the Foreign Intelligence Surveillance Act, which Judge Byrne denied, and which was subsequently appealed to the Supreme Court.  When the Supreme Court denied certiorari on the wiretap question in November of 1972, Byrne declared a mistrial on account of delay, and a second jury was empanelled. However, when the case resumed again in 1973, after evidence had been presented, Byrne learned that Nixon operatives from the White House Special Investigations Unit (“Plumbers”) had broken into the office of Ellsberg psychiatrist Lewis Fielding in an attempt to discover discrediting information. This, combined with information that Nixon Administration officials had approached Byrne in the middle of the case with an offer of an appointment of FBI directorship for him, which could have been viewed as an effort to influence the outcome, a mistrial was declared and all charges were dropped do to extreme government misconduct. That ruling didn’t come until May of 1973. Charles Colson, of the Plumbers, eventually pleaded ‘no contest’ to the break in charges.

While it is still an open question as to how dangerous the Pentagon Papers were to America’s national security, or how dangerous the courts believed them to be, or even how dangerous the government actually believed them to be, the case was unique in that it dealt with two of the most respected and institutionally Cheap mlb Jerseys trusted publishers of information in the country, and the information being published was of an historical nature.  The ruling in the Pentagon Papers case in fact gave the newspapers editors incredibly wide latitude on what it could publish, and essentially gave them the discretion to determine which secrets were safe for public consumption. Would the case have been different if the publishers had been less universally recognized as ‘trusted’ sources, and if the information had been a bit more forward looking?  One such example can be found in the Progressive case from 1979, in which a left-wing magazine obtained and sought to print detailed plans and instructions on how to make a hydrogen bomb—information that until that time had been secret.  When the government learned of this plan, it initially tried to block publication with a restraining order. Their request was granted, and a trial was held with both open and closed sessions, but as the case wound through the courts, charges were dropped on the grounds that the information had ultimately been published elsewhere.  In considering the newsworthiness of this information weighed against the harm it could potentially cause, the newsgathering responsibilities given to publishers by the courts is substantial, especially in an electronic age in which the internet is breaking down previous channels of traditional newsgathering techniques and restraint.

Leaked information and the balance between the free flow of information. The U.K.’s approach is an Official Secrets Act, which operates in a distinctly separate dynamic. While the British have a notoriously active press due to their more lax libel laws, their state secrets doctrine, as amended in 1989, explicitly forbids the public interest after a civil servant, who leaked information about naval activities during the Falklands War was acquitted by a jury.  In contrast, when an “Official Secrets” Act was passed by the Congress in 2000, it was pocket-vetoed by President Clinton because of his expressed concern that such an act would not strike the right balance between secrecy and the free flow of information, or chill discussion. A similar bill was introduced in the 109th Congress by a coalition of 15 Republican Senators but did not pass. In the current Congress, a competing bill has been introduced by Senators Kennedy and Leahy.

The Leakers

Anthony Russo and Daniel Ellsberg 

<td Wholesale NFL Jerseys valign=”top” width=”200″>SCENE 3:
June 17, 1971—Post Assistant Managing Editor Ben Bagdikian has just returned to Ben Bradlee’s Georgetown home carrying boxes full of documents representing the Post’s desperately needed leak.

BRADLEE: What’s all this “source” crap? Every news report in the country this morning is saying it’s this guy Ellsberg.
BAGDIKIAN: They’re saying who they think the Times‘ source is. I’m not saying who mine is.
BRADLEE: Okay, okay. Go ahead.
BAGDIKIAN: That’s when I called you and got your assurances. Then I headed for Boston.
BRADLEE: Boston! I thought you went to Los Angeles.
BAGDIKIAN: No.  My guy was in a motel in Boston. Talk about spy movies! I was directed from one phone booth to another and from checkpoint to checkpoint until the drop was finally made. By now it’s 2:30 a.m. I get the Papers into a carton and grab a cab to a hotel. By this time I’m paranoid, convinced I’m being tailed.
BRADLEE: That’s not paranoia. The way the government’s been reacting, that’s common sense…

WASHINGTON LEAKSGovernment leaks of confidential information have been a part of the Washington system since the administration of Theodore Roosevelt, when government bureaucrats fed the budding national press information that was designed to achieve their objectives. Leaks can be self-interested, done in the interest of one’s superior, made as attacks against other figures or departments. They can be offered as trial balloons of ideas, can be intended to expose and thus end consideration of other ideas, or part of an effort to ward off unfriendly treatment by a particular reporter by becoming a ‘source’ rather than a ‘target.’

Pentagon Papers authors Morton Halperin and Les Gelb themselves recognized this reality in a Harper’s magazine piece one year after the Pentagon Papers in which they described, “The Ten Commandments of the Foreign-Affairs Bureaucracy”, listing as Number 7:

7. Leak what you don’t like.

We had a glimpse of this phenomenon last January with the publication of the Anderson Papers, in which we read about Henry Kissinger warning his State, Defense, and CIA colleagues: “The President does not believe we are carrying out his wishes. He wants to tilt in favor of Pakistan. He feels everything we do comes out otherwise.” And, “The President is under the ‘illusion’ that he is giving instructions; not that he is merely being kept apprised of affairs as they progress.” The President’s subordinates disagreed with the President’s policy toward the India-Pakistan crisis. They were undermining him by resisting his orders and then by leaking his policy. He knew it and did not like it; but apparently could not do much about it.

Although leaking the texts of many documents, a la Pentagon and Anderson papers, is relatively rare, much classified information regularly makes its way into the press. Presidents are surprised not when something leaks but rather when any hot item remains out of the press for even a few days. Providing information to the press-whether in press conferences, backgrounders, or leaks-is the main route by which officials within the executive branch bring their supporters in the Congress and the interested public into action. Only bureaucrats with potential outside support are tempted to leak. In some cases, it is sufficient to leak the fact that an issue is up for decision: in others, what is leaked is information on the positions of key participants. In many instances sufficient factual material must be leaked to convince Congressmen and others to join the fray.

Presidents don’t like leaks by others and complain about them whenever they occur, often asking the FBI to run down the culprit. Such efforts almost always fail.

The leakers in the Pentagon Papers case, Daniel Ellsberg and Anthony Russo, gave up their positions in defense consulting corporation RAND, their access to officials, and were willing to face criminal sanction or jail time because they believed that the information that they were providing was of vital national interest and could eventually stop the war and save lives.

As noted in a recent letter from the Newspaper Association of America and National Newspaper Association to members of Congress, these leaks have led to vital information coming to public attention in a way that brings benefit to the nation, but real risks exist each time a government staffer breaks their confidentiality agreement and takes decisions into their own hands.

PENTAGON PAPERS LEAKERSEllsberg has remained a controversial figure, held up by some as a hero for the anti-war movement and government, and reviled by others as either an attention-seeker, a late-comer, or a thief. But the choices he made in inviting his friend and colleague Anthony Russo (pictured right) to take actions that would change his future, and that of the nation, were not taken lightly.

Like many leakers, Ellsberg tried to exert his influence from the inside numerous times before taking his concerns public.  As an author of the Pentagon Papers, he possessed easy access to the top echelons of the defense establishments. His top academic credentials as a member of the prestigious Society of Junior Fellows at Harvard, as Woodrow Wilson Fellow at Cambridge, his military credentials as a lieutenant in the fields during the Suez Canal engagement, his work in Vietnam on the staff of Gen. Edward Lansdale, all aided his credibility. Ellsberg had been a member of the pro-war establishment at the start of the fighting, and had worked in the State Department, took assignments from the Defense Department, and had been in Vietnam himself; it was in Vietnam where he first met Anthony Russo, a RAND engineer and political scientist who was studying Viet Cong motivations by interviewing prisoners and defectors. Ellsberg initially wrote favorably about the effort. But as the war advanced, and his analysis began to show that the war was not being won, that the objections were not being achieved, and the death tolls seemed to mount regardless of the rationality of any particular military move, Ellsberg eventually became a dissenter. Initially this dissent was registered from within the establishment. In 1968, he had even prepared an ‘A-to-Z’ list of options and had spent four days reviewing them with Henry Kissinger at Nixon campaign headquarters in New York, but Kissinger dismissed one of the key Ellsberg recommendations: withdrawal.

Ellsberg’s frustration mounted, and in September of 1969, Ellsberg, working at night, and with the help of RAND colleague Anthony Russo and the Xerox machine of Russo’s partner Lynda Sinay, photocopied the documents, working at night and separating and hiding them for fear of discovery.

By October 12, 1969 he and several RAND colleagues wrote a letter to the editor of the Washington Postexpressing their conclusion that full withdrawal within the year was the only available military option. And by the end of the year, he had leaked part of the papers to Senator J. William Fulbright of Arkansas (pictured left), Chairman of the Senate Foreign Relations Committee, but Fulbright refused to use them until he received them through official channels, and engaged in a long battle with the Department of Defense to have them released. Ellsberg himself also gave testimony before the Senate Foreign Relations Committee in 1970, but without disclosing the contents of the Papers.

In September 1970, Ellsberg penned a 70-page analytical essay “Escalating in a Quagmire,” a draft widely circulated among the defense establishment, but as he saw none of this work was having the kind of impact that was needed to change course on the war, he slowly came to realize that leaking was the best option. He first leaked the study to the Institute for Defense Policy Studies, a far-left think tank in California, but they had intended to use the information to write a book-length report, a process that could take a full year. In the end, the March leak to the New York Times was seen as the only viable option, as other sources would not have had the kind of impact desired.

Ellsberg and Russo both faced prosecution in Los Angeles for making these disclosures, and while their cases were thrown out because of government misconduct in the trial, the crimes for which they were charged had combined sentences of more than 100 years in prison, and Russo served six weeks in jail because of his refusal to testify cheap ray bans to the grand jury in the case.

WHISTLEBLOWERS“Leakers” refers to public officials who have access to information and divulge it through the news media, often anonymously, whereas “whistle-blowers” refers to officials who come forward publicly or semi-publicly with their information. While there are legal protections on federal and state levels to which they are entitled, and whistleblowers are instructed to report their information to the inspector general of their particular agency, to the department of justice, or their Congressional oversight committee, there are often serious financial and professional tolls that are taken on individuals who report waste, fraud, abuse, and corruption. This is especially true of intelligence and defense agencies, where security clearances are often stripped in administrative actions that are not subject to judicial appeal, effectively ending the career of the whistleblower. In 2002, FBI agent Coleen Rowley, along with two private-sector whistleblowers, was named “Person of the Year” by Time magazine for her efforts to bring accountability to the FBI for its intelligence failures leading up to the Sept. 11 attacks.

PREVENTATIVE LEAKSAmong notable recent leaks are the information disclosed the New York Times about the National Security Agency’s warrantless wiretapping program or the Washington Post’s stories on the CIA’s secret prisons or ‘black sites,’ but these leaks reveal programs that have already been in place. Daniel Ellsberg has called for a new kind of leak, the preventative leak, which seeks to reveal government covert plans before they can be carried out, advocating the revealing of information before lives are lost, especially in military situations. He describes his concerns here:

The Next War, by Daniel Ellsberg, Harper’s, October, 2006

A hidden crisis is under way. Many government insiders are aware of serious plans for war with Iran, but Congress and the public remain largely in the dark. The current situation is very like that of 1964, the year preceding our overt, open-ended escalation of the Vietnam War, and 2002, the year leading up to the U.S. invasion of Iraq.

In both cases, if one or more conscientious insiders had closed the information gap with unauthorized disclosures to the public, a disastrous war might have been averted entirely.

My own failure to act, in time, to that effect in 1964 was pointed out to me by Wayne Morse thirty-five years ago. Morse had been one of only two U.S. senators to vote against the Tonkin Gulf resolution on August 7, 1964. He had believed, correctly, that President Lyndon Johnson would treat the resolution as a congressional declaration of war. His colleagues, however, accepted White House assurances that the president sought “no wider war” and had no intention of expanding hostilities without further consulting them. They believed that they were simply expressing bipartisan support for U.S. air attacks on North Vietnam three days earlier, which the president and Secretary of Defense Robert McNamara had told them were in “retaliation” for the “unequivocal,” “unprovoked” attack by North Vietnamese torpedo boats on U.S. destroyers “on routine patrol” in “international waters.”

Each of the assurances above had been false, a conscious lie. That they were lies, though, had only been revealed to the public seven years later with the publication of the Pentagon Papers, several thousand pages of top-secret documents on U.S. decision-making in Vietnam that I had released to the press. The very first installment, published by the New York Times on June 13, 1971, had proven the official account of the Tonkin Gulf episode to be a deliberate deception.

When we met in September, Morse had just heard me mention to an audience that all of that evidence of fraud had been in my own Pentagon safe at the time of the Tonkin Gulf vote. (By coincidence, I had started work as a special assistant to an assistant secretary of defense the day of the alleged attack—which had not, in fact, occurred at all.) After my talk, Morse, who had been a senior member of the Senate Foreign Relations Committee in 1964, said to me, “If you had given those documents to me at the time, the Tonkin Gulf resolution would never have gotten out of committee. And if it had somehow been brought up on the floor of the Senate for a vote, it would never have passed.”

He was telling me, it seemed, that it had been in my power, seven years earlier, to avert the deaths so far of 50,000 Americans and millions of Vietnamese, with many more to come. It was not something I was eager to hear. After all, I had just been indicted on what eventually were twelve federal felony counts, with a possible sentence of 115 years in prison, for releasing the Pentagon Papers to the public. I had consciously accepted that prospect in some small hope of shortening the war. Morse was saying that I had missed a real opportunity to prevent the war altogether


The run-up to the 1964 Tonkin Gulf resolution was almost exactly parallel to the run-up to the 2002 Iraq war resolution.

In both cases, the president and his top Cabinet officers consciously deceived Congress and the public about a supposed short-run threat in order to justify and win support for carrying out preexisting offensive plans against a country that was not a near-term danger to the United States. In both cases, the deception was essential to the political feasibility of the program precisely because expert opinion inside the government foresaw costs, dangers, and low prospects of success that would have doomed the project politically if there had been truly informed public discussion beforehand. And in both cases, that necessary deception could not have succeeded without the obedient silence of hundreds of insiders who knew full well both the deception and the folly of acting upon it.


It took me that long to recognize that the secrecy agreements we had signed frequently conflicted with our oath to uphold the Constitution. That conflict arose almost daily, unnoticed by me or other officials, whenever we were secretly aware that the president or other executive officers were lying to or misleading Congress. In giving priority, in effect, to my promise of secrecy—ignoring my constitutional obligation—I was no worse or better than any of my Vietnam-era colleagues, or those who later saw the Iraq war approaching and failed to warn anyone outside the executive branch.


We face today a crisis similar to those of 1964 and 2002, a crisis hidden once again from the public and most of Congress. Articles by Seymour Hersh and others have revealed that, as in both those earlier cases, the president has secretly directed the completion, though not yet execution, of military operational plans—not merely hypothetical “contingency plans” but constantly updated plans, with movement of forces and high states of readiness, for prompt implementation on command—for attacking a country that, unless attacked itself, poses no threat to the United States: in this case, Iran.

According to these reports, many high-level officers and government officials are convinced that our president will attempt to bring the about regime change in Iran by air attack; that he and his vice president have long been no less committed, secretly, to doing so than they were to attacking Iraq; and that his secretary of defense is as madly optimistic about the prospects for fast, cheap military success there as he was in Iraq.


Many of these sources regard the planned massive air attack—with or without nuclear weapons—as almost sure to be catastrophic for the Middle East, the position of the United States in the world, our troops in Iraq, the world economy, and U.S. domestic security. Thus they are as deeply concerned about these prospects as many other insiders were in the year before the Iraq invasion. That is why, unlike in the lead-up to Vietnam or Iraq, some insiders are leaking to reporters. But since these disclosures—so far without documents and without attribution—have not evidently had enough credibility to raise public alarm, the question is whether such officials have yet reached the limit of their responsibilities to our country.

Assuming Hersh’s so-far anonymous sources mean what they say—that this is, as one puts it, “a juggernaut that has to be stopped”—I believe it is time for one or more of them to go beyond fragmentary leaks unaccompanied by documents. That means doing what no other active official or consultant has ever done in a timely way: what neither Richard Clarke nor I nor anyone else thought of doing until we were no longer officials, no longer had access to current documents, after bombs had fallen and thousands had died, years into a war. It means going outside executive channels, as officials with contemporary access, to expose the president’s lies and oppose his war policy publicly before the war, with unequivocal evidence from inside.

Simply resigning in silence does not meet moral or political responsibilities of officials rightly “appalled” by the thrust of secret policy. I hope that one or more such persons will make the sober decision—accepting sacrifice of clearance and career, and risk of prison—to disclose comprehensive files that convey, irrefutably, official, secret estimates of costs and prospects and dangers of the military plans being considered. What needs disclosure is the full internal controversy, the secret critiques as well as the arguments and claims of advocates of war and nuclear “options”—the Pentagon Papers of the Middle East. But unlike in 1971, the ongoing secret debate should be made available before our war in the region expands to include Iran, before the sixty-one-year moratorium on nuclear war is ended violently, to give our democracy a chance to foreclose either of those catastrophes.

The personal risks of doing this are very great. Yet they are not as great as the risks of bodies and lives we are asking daily of over 130,000 young Americans—with many yet to join them—in an unjust war. Our country has urgent need for comparable courage, moral and civil courage, from its public servants. They owe us the truth before the next war begins.


Interview with Daniel Ellsberg

Daniel Ellsberg Interview with Harry Kreisler: Conversations with History Institute of International Studies, UC Berkeley conducted July 29, 1998.

Daniel Ellsberg was the high-level researcher who leaked the Pentagon Papers, the top-secret history of the U.S. involvement in Vietnam. The act, which shortened U.S. military involvement in Vietnam and contributed to President Richard Nixon’s resignation also slapped Ellsberg with a twelve-count indictment for espionage, theft and conspiracy. The charges were eventually dropped and Ellsberg went on to become a leading figure in the U.S. peace movement. Today he continues to speak about the role of the Pentagon Papers, governmental secrecy and conspiracy, and abolishing nuclear threats and weapons.

Q: You remained for many years part of the government, part oakley outlet of the team, willing to live with the elements of this decision making process. After much frustration with Vietnam, after reading the Pentagon Papers, you reached a different conclusion about what is acceptable and what is moral. Explain how that change in your thinking came about.

A: I learned in Vietnam nothing very new about the lack of good prospects for success. I went to Vietnam pretty much with that perspective, or certainly I had it in 1964, and I had it in 1961. I did learn the faces of the Vietnamese. I learned to be concerned for what happened to Vietnamese people in ray bans sale a way that my colleagues back in Washington probably didn’t feel. They had a reality for me. They weren’t just numbers and they weren’t just abstract ciphers of some kind, as they were for other people. And as I would have to say probably for myself, people in other parts of the world that didn’t have that same friendly awareness in my mind. And I wasn’t aware of them as friends and associates and so forth. That was a consideration.

What I particularly learned, though, in 1969, and from the Pentagon Papers, was that Nixon, the fifth president in a row now, was choosing to prolong the war in vain hopes that he might get a better outcome than he could achieve if he’d just negotiated his way out and took what he could get and accepted, essentially, a defeat. He hoped to do much better than that. In fact, he hoped to hold on to control of Saigon and the major populated areas indefinitely for the United States, that these would be subject to our will and our policy and not be run by communists. And he hoped to do that, actually, in ways similar to the way Johnson had hoped—by threatening escalation of the war, threatening bombing of North Vietnam. He was making such threats and then he was prepared to carry them out. I did not believe the threats would succeed, so I foresaw a larger war. He was fooling the public about what he was doing at this time for the same reason Johnson had in 1964. The public would not, at that time, have supported a continuation of the war, let alone an expansion of the war. But he was successfully fooling the public, who didn’t want to believe that any president could be so foolish and so narrow minded in his own interests as to keep that war going after the Tet offensive of 1968. So I saw a replay of 1964 and 1965 coming again. I saw once again a president making secret threats, almost sure to carry them out, and deceiving the public as to what he was doing.

By reading the Pentagon Papers, which I finished doing in the fall of 1969, in September 1969, I now had a historical sweep sufficient to reach a conclusion that I would have been very unlikely to reach without reading them, and that was that there was very little hope of changing his [the President’s] mind from inside the executive branch, for example, by giving him good advice or by giving him realistic estimates of what was happening in Vietnam. Because what I saw by reading the earliest days of the Pentagon Papers, going back to 1945 and 1946, was that every president had had such advice, as early as Truman. Truman had seen predictions of an indefinitely prolonged guerrilla war facing him and yet had gone ahead in supporting the French in this effort. And this had happened year after year. It happened year after year for Eisenhower and Kennedy and Johnson. The fact now that Nixon was embarked on a new course held out very little hope that he would be more responsive just to good advice about getting out than any of his predecessors had been. That meant that if his decision was going to be changed—and because I cared about Vietnam and this country, I felt quite urgently that I wanted the United States to stop bombing them and stop killing Vietnamese—the pressure would have to come from outside the executive branch. It would involve a variety of things, but it probably required better information outside the executive branch, in Congress and in the public, about the past and about the present, than they had. If I had had documents on what Nixon was planning, on what I’d been told he was planning by colleagues who were working for Nixon, I would have put those out at that time to Congress to warn them of what was coming. I probably would not have bothered with the thousands of pages of history that involved the earlier presidents; I would have shown what Nixon was doing. But I didn’t have those documents. And at that time, it was very hard to get the public to believe or to act on the possibility that a president was lying to them or deceiving them. That was not in the American consciousness, and it was a very unpopular notion even to put forward.

I once said in a courtroom, in defense of people who were on trial for resisting the draft, that the President had lied. This was in early 1971, before the Pentagon Papers had come out. The judge stopped the proceedings, called the lawyers up to the bench. I could hear what he was saying because I was in the witness box next to him. “If you elicit testimony like that again,” he said to the defense lawyer, “I will hold you in contempt. I will not have statements about the President lying in my courtroom.” This was in a trial of people who were resisting the war nonviolently. And they weren’t allowed, in effect, to have witnesses who said anything like that, that the President was lying. The Pentagon Papers changed that. Seven thousand pages of documents of presidential lying did establish forever, and they were confirmed of course by Watergate a couple of years later, that cheap oakleys sunglasses presidents all lie.

Cowan delivers the prestigious F.Y. Chang Lecture

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