|Scene 5:Home of The Washington Post’s executive editor Ben Bradlee. As the deadline nears, Ben Bradlee defers the decision to publish or withhold the information to publisher Katharine Graham.BEEBE: But ultimately it’s up to you. (long pause) Alright, Kay. Thanks. Good-bye. (He slowly cradles the phone. Then, quietly, to those assembled.) We publish.|
June 18, 1971
RIGHTS AND RESPONSIBILITIES
When Katharine Graham, over the phone, agreed to challenge the United States government and publish the Pentagon Papers, as related in Top Secret, her decision changed the national landscape for freedom of the press.
The right to publish the Pentagon papers is viewed as a triumph of a free press over an oppressively secret presidential administration, a court case that vindicates the right of the press to cover stories in the public interest.
However, the right to publish does not end with the freedom to publish, but it also implicates the responsibility to be prudent in choices made about what to publish and how, choices that are not easy or without controversy.
Although Top Secret describes the feverish activity of the reporters of the Washington Post as they decided whether to move forward to publication the Papers, most choices about the merits of publication are less frenzied, and the New York Times‘ experience may be more representative. The Times had received the Papers on March 21, 1971 and had been processing them and writing the stories in a hotel outside of the Times building for fear of raids by the FBI.
The Times team, which included Neil Sheehan, Hedrick Smith, E.W. Kenworthy, Gerald Gold, James Greenfield, Allan Siegel, and Fox Butterfield spent the next three months scouring the records and preparing the stories, and at each step along the way, the editors carefully considered how the story would be reported in a way that was responsible. They established a huge chart checking each fact in the Pentagon Papers against their previous reporting and other published accounts of events to ensure that any potentially controversial material had already been in the public domain or was being disclosed for the first time in a responsible and discerning manner. Many arguments were held over the reporter’s own efforts to self-censor, to write the headlines in a non-sensational, even bland, manner. This self-restraint continued both before and after the Supreme Court decision, as can be seen by the headlines, which refrain from the kind of overstating the revelations. Easily, the message could have been described as ‘Consecutive Presidents Mislead Americans, Conduct Secret Illegal War’, but instead the editors, if anything, made the headlines more staid than necessary:
- June 13:
- June 14:
- June 15:
- July 1:
- July 2:
There was also a commitment to reporting the story in the way that best reflected journalistic choices: early in the publication consideration, Times general counsel suggested that the reports on the Pentagon Papers be published altogether in one large supplement so as to avoid government censorship through an attempt at prior restraint, but this approach was rejected as a way of ‘sneaking’ the story into the press. Similarly, the papers refused to wait to allow government sources to re-censor the classified information, which early on proposed as an alternative to the litigation. Finally, when the Supreme Court granted certiorari to hear the cases, they had granted the newspaper permission to continue printing during the arguments and deliberations as long as they excluded documents on a specific list given to them by the government; again, both the Post and the Times refused to compromise their accounts and simply refused publication at all.
And while the Times and Post may have been at the forefront of the publication, and the Times was the only paper willing to reprint the text of the classified documents, other publications also distributed at risk:
* The Boston Globe, through the enterprise of its reporter Tom Oliphant received a copy of the papers after an elaborate drop-off plan engineered by Ellsberg for fear that he would be discovered as the source. After the first story, which focused on the local-angle Kennedy years, that paper also faced a restraining order, but in Boston the federal judge additionally ordered the papers to be impounded with the court. In defiance, the Globe publisher Tom Winship arranged to have the papers secretly locked in an airport locker until a compromise was reached and the papers were sealed, with court approval, in a bank vault until the Supreme Court ruled.
* In Chicago, the Sun-Times managed to get a look at the copy that was held by a member of Congress on June 23, well after the Times injunction, but in that case, the U.S. Attorney’s office did not intervene with court action, only phone calls, and the Sun-Times was able to print some hard-hitting stories based on the Papers, including one about Eisenhower’s 1958 commitment to eliminating Communist control in the North and uniting it with the South for a more U.S. friendly regime, and another detailing a 1969 memo from the CIA claiming that if the U.S. left the south, “all of Southeast Asia would remain just as it is for another generation.”
* Papers in the Knight chain in Detroit, Miami, Tallahassee, Akron, Boca Raton, Charlotte, and Macon all carried a one-installment report from a leak of the papers that stressed McNamara’s role in discouraging ground troops.
* In Los Angeles, the Times ran its stories, and, due to its wire-service relationship with the Washington Post, those stories were also able to run in Washington, and in St. Louis, the Post-Dispatch ran stories on June 25 and 26, the last moment before the Supreme Court Arguments.
* On June 29, after the Supreme Court arguments, the Christian Science Monitor began the first of a three-part series and received a call from the U.S. Attorney, but refused to comply other than to explain the contents of the future installments.
This tradition of both standing up for the right to publish freely and being judicious and responsible about what to publish should not have come as a surprise to close observers of the press. History provides examples of the press vigorously guarding the public’s right to know but just as seriously considering the public’s other rights, such as safety and security:
* During World War I, under the newly enacted Espionage Act, war reporters agreed to take oaths not to report information that could aid the enemy
* During World War II, the press agreed to refrain from publishing information about weather reports, troop movements, casualty lists, war material experiments, military planes, or locations of national treasures, for fear of enemy targeting. Only one radio journalist knowingly violated these regulations.
* New York Times reporters knew of the existence of the atomic bomb long before it was published.
* The press did not disclosed the military plans for the surprise Bay of Pigs invasion for fear of tipping of Cuba and endangering American soldiers
* During Iran hostage crisis, the press knew of some embassy officials had escaped, but no press and lawyers.
* Katharine Graham herself later ordered the Post not to report on secret talks between America and Iranian lawyers for fear of endangering the hostages
As the Pentagon Papers case illustrated, government leaks of secret information are integral to successful Washington coverage, and reporters and editors learn which leaks are truly newsworthy, which are useless, and which really are potentially dangerous.
For example, when the New York Times reported in December 2005 that the National Security Agency had been secretly wiretapping phones without the appropriate warrants, Times editors noted in the story that they had withheld publication for nearly a year at the request of the federal government for national security considerations.
The decision was controversial, and the Times was criticized by both sides for the debate, but the reporters were ultimately rewarded with a Pulitzer Prize for their investigative reporting, and the story could not have been told without ‘leaks’ or ‘anonymous sources.’
Similarly, the Washington Post was under heavy criticism a few months earlier when it published a story about secret CIA prisons located in Eastern Europe used to house American terrorism suspects. While Post editors agreed to refrain from naming the countries, at the request of the government, they were able to inform the public about the existence of these ‘black sites’ and begin a debate on national policies on rendition and torture.
Both the wiretapping and the secret prisons were subjects of Congressional inquiry would not have been likely without the publication of those articles. The wiretapping story has been likened to the Pentagon Papers case.
Finally, in June of 2006, when the New York Times filed its story about how large amounts of bank data were being examined in an effort to find terrorism links, the paper was roundly criticized, but executive editor Bill Keller continued to defend the paper and try to explain to the public the choices and challenges involved in these decision.
While Keller will continue to explain his choices and actions, just as much as reporters will continue to try to explain the government’s choices and actions, he might consider the words of his predecessor editor Max Frankel, who explained, with a notable candor, the challenge of dealing in a world where leaks and secrets are stock in trade, and discretion, in all its senses, can be one of the highest values:
Affidavit of Max Frankel, New York Times Washington Bureau Chief, in New York Times v. U.S. (Pentagon Papers):
6. The governmental, political and personal interests of the participants are inseparable in this process. Presidents make “secret” decisions only to reveal them for the purposes of frightening an adversary nation, wooing a friendly electorate, protecting their reputations. The military services conduct “secret” research in weaponry only to reveal it for the purpose of enhancing their budgets, appearing superior or inferior to a foreign army, gaining the vote of a congressman or the favor of a contractor. The Navy uses secret information to run down the weaponry of the Air Force. The Army passes on secret information to prove its superiority to the Marine Corps. High officials of the Government reveal secrets in the search for support of their policies, or to help sabotage the plans and policies of rival departments. Middle-rank officials of government reveal secrets so as to attract the attention of their superiors or to lobby against he orders of those superiors. Though not the only vehicle for this traffic in secrets—the Congress is always eager to provide a forum—the press is probably the most important.
7. In the field of foreign affairs, only rarely does our Government give full public information to the press for the direct purpose of simply informing the people. For the most part, the press obtains significant information bearing on foreign policy only because it has managed to make itself a party to confidential materials, and of value in transmitting these materials from government to other branches and offices of government as well as to the public at large. This is why the press has been wisely and correctly called The Fourth Branch of Government.
19. But for the vast majority of “secrets,” there has developed between the Government and the press (and Congress) a rather simple rule of thumb: The Government hides what it can, pleading necessity as long as it can, and the press pries out what it can, pleading a need and a right to know. Each side in this “game” regularly “wins” and “loses” a round or two. Each fights with the weapons at its command. When the Government loses a secret or two, it simply adjusts to a new reality. When the press loses a quest or two, it simply reports (or misreports) as best it can. Or so it has been, until this moment.
21. Some of the best examples of the regular traffic I describe may be found in the Pentagon papers that the Government asks us not to publish. The uses of top secret information by our Government in deliberate leaks to the press for the purposes of influencing public opinion are recorded, cited and commented upon in several places of the study. Also cited and analyzed are numerous examples of how the Government tried to control the release of such secret information so as to have it appear at a desired time, or in a desired publication, or in a deliberately loud or soft manner for maximum or minimum impact, as desired.
37. The Pentagon papers published and to be published by the Times and a bureaucratic history and analysis of the interaction of events and policy decisions are an invaluable historical record of a momentous era in our history. We cannot believe they should or will be suppressed.