SCENE 1:
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 |
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 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 YorkI 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 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.
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.
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 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 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
