Introduction

            On the lazy Sunday morning of June 13, 1971, pictures of Tricia Nixon’s White House marriage to Edward Cox filled the front page of almost every major newspaper.  The New York Times carried a story on the wedding as well; the lead story, however, was heralded by a two-deck headline across four columns of the page:  “Vietnam Archive:  Pentagon Study Traces 3 Decades of Growing U.S. Involvement” (Arno 30).[1]  This archive — the Pentagon Papers — and its release through newspaper articles in the Times would set in motion a whirlwind sixteen-day legal battle ending in an emergency session of the Supreme Court.  Though revealed by Daniel Ellsberg in the hopes of ending the Vietnam War, the Pentagon Papers would attain their ultimate significance through the stand taken by the New York Times, pitting the First Amendment guarantee of press freedoms against the government’s concept of national security.

The Leak

            By June of 1967, then-Secretary of Defense Robert McNamara had become convinced that the United States’ effort in Vietnam was a “failure” and that future scholars would need the history of the war to avoid repeating past mistakes.  He therefore commissioned a comprehensive history of U.S. involvement in Indochina.[2]  A year and a half later, the Vietnam History Task Force had produced 3,000 pages of analysis and added 4,000 pages of documents to create a 47-volume study entitled “History of U.S. Decision-Making Process on Vietnam Policy, 1945-1967.”[3]

            Among those who wrote the study (later termed the “Pentagon Papers”) was an economics expert at the Rand Corporation[4] named Daniel Ellsberg.  Ellsberg was early in his career a dedicated supporter of the war;[5] once he observed firsthand the fighting in Vietnam, however, his view shifted dramatically.[6]  Upon his return to the States, he sought to communicate his findings to others but was largely unsuccessful.  For several months in 1969, Ellsberg had complete access to the Pentagon study;[7] convinced that the release of the Papers would hasten the end of the war,[8] he broke his agreement with Rand forbidding duplication of secret documents and xeroxed all but four volumes,[9] covering with white paper the classification mark at the bottom of the original sheets and thus leaving a blank space on the copies.[10]

            Ellsberg first tried to give the documents to powerful figures on Capitol Hill, all of whom balked at the political risk;[11] he then decided to release the Papers through the press.  After reading an anti-war essay in the Times by reporter Neil Sheehan,[12] Ellsberg contacted him and met with him in Boston on February 28, 1971.[13]  Three weeks later, on March 19, Sheehan and his wife checked into the Treadway Motor Inn in Cambridge, Mass.; they returned to Washington with five shopping bags full of xeroxed documents, a curious blank space at the bottom of every page.

The Decision

            The initial reaction at the Times to Sheehan’s documents was not encouraging; age-old files from a dusty archive struck many as stale news.[14]  Combing through 7,000 pages of documents would also be, said Washington bureau chief Max Frankel, “a mammoth reading job” (Ungar 88).

            This reluctance vanished once the reporters and editors realized the importance of the documents’ contents.  The Papers showed unequivocally how the United States had become entangled in Vietnam,[15] how the war had been conducted from the outset without any real hope of “winning,”[16] and how the government for the past quarter of a century had been engaged in concealing vital information about the war in Vietnam from its own citizens.[17]  Frankel remembers “saying to Neil very early on that ‘if this is the quality of most of the thing, it’s a gold mine’” (Ungar 88).[18]

            Sheehan and others soon began sorting, analyzing, and summarizing the Papers into newspaper copy.[19]  On April 20, 1971, several editors at the Times met with Sheehan to discuss the documents’ contents.  Managing editor A. M. Rosenthal had to be convinced several times of the Papers’ accuracy and validity, while general counsel James Goodale raised questions about the legality of printing; though reassured that the study was entirely history and had no bearing on current military operations,[20] Goodale feared that the government would stop the articles through an injunction.[21]  He took the matter to Lord, Day and Lord, the Times’ law firm, and asked the opinion of partner Louis Loeb.  Loeb and Herbert Brownell, the head of the firm,[22] strongly

opposed publication; Loeb especially objected to the Times’ obtaining “stolen” secret documents.[23]

            Unaware of the arguments raging among the Times’ legal personnel, the reporters and editors continued to delve into the vast pile of documents[24] as the management on the fourteenth floor continued to disagree over whether to print.[25]  Harding Bancroft, an executive aide to Times publisher Arthur Ochs Sulzberger and his second-in-command, opposed publishing the Papers on the advice of Loeb and Brownell.  Goodale, who disagreed with the firm, had in response prepared a legal brief supporting publication.

            The decision was ultimately left to the publisher.  Near the end of the first week of June, a week before a scheduled trip to London, Sulzberger asked to see Sheehan’s draft for the first planned article — it was not yet “in very polished form” (Ungar 103), and Sulzberger, unimpressed, reserved his decision on whether to print.[26]  It was only on the morning of June 11 — two days before his London trip — that he informed Rosenthal of his decision:  the Times could print, as long as Bancroft would review each article beforehand (Salisbury 205).[27]  On Sunday, Sulzberger left for London, and the New York Times rolled out on schedule, a “Vietnam Archive” featured on its front page.[28]

The Crisis

            The Nixon Administration’s initial reaction to the Papers was mixed; Nixon resented the printing of secret material, but believed that since the archive stopped during Johnson’s presidency, it would only damage the Democrats.[29]  Persuaded by Henry Kissinger that the release of secret documents might delay the secret negotiations with China, however, he gave orders on Monday morning to stop the leak as soon as possible.[30]

            The decision to seek a prior restraint — an injunction prohibiting the Times from publishing future articles — was made by Robert Mardian, the Assistant Attorney General for Internal Security Affairs.[31]  The Justice Department at this time did not know the exact contents of the Papers or what secrets might be revealed.[32]  On this uncertain footing, Mardian decided to act:  the Times would be given a warning to stop publishing voluntarily; after that, the government would go into court to stop them.[33]  Around 7 p.m., he ordered a telegram (written under the name of Attorney General Mitchell) sent to publisher Sulzberger.[34]  Mardian called the Times at 7:30, and finding that it had not yet received the telegram, he read the text to Bancroft over the phone.[35]

            Bancroft immediately assembled the Times’ top brass.[36]  The lines were quickly drawn:  those who had been concerned about printing at first were opposed to defying the government’s request; those who had favored publication were adamant about continuing.  “Sydney Gruson and Abe Rosenthal, according to one participant in the session, were ‘screaming and yelling at each other.  It was like a movie’” (Ungar 121).  Goodale remembers feeling that “the battle had been joined and that we had to do battle.”  When Rosenthal insisted that Sulzberger be awakened (it was 2 a.m. in London), Goodale took the phone and urged him to allow publication.

            Sulzberger quickly came to a decision.  The Times would defy the government’s order; it would not voluntarily submit to censorship.  The publisher ordered the printing to continue and made arrangements to return early to New York, while the Times released a public statement announcing its decision to “respectfully decline” the government’s request.[37]  The next day, the third article in the Pentagon series ran on the front page, but it was not the lead; that space was filled with a story by Max Frankel, headlined “Mitchell Seeks to Halt Series on Vietnam but Times Refuses.”[38]

            Knowing that legal action was imminent, Goodale immediately consulted Louis Loeb.  Loeb sent him to Brownell, who refused to argue for the Times and told Goodale at 9 p.m. that Lord, Day and Lord would not be representing them in court the following morning.[39]  With the Times’ lawyers gone, says Goodale, “I went looking for another lawyer.”  He had had lunch that day with a Yale Law professor named Alexander Bickel;[40] “I had talked to [Bickel] a little bit about the [Pentagon Papers] case . . . I felt that he would be very supportive, so I called him.”  Goodale was unable to find the professor and telephoned Floyd Abrams, a close associate of Bickel and a partner at the New York firm of Cahill, Gordon.  After a battery of phone calls, the Times’ night rewrite staff located Bickel, and at 1:15 a.m. on Tuesday morning, the two lawyers began work for the next morning’s court appearance.[41]

            When emergency matters came up in New York’s Southern District, the cases were assigned according to a pre-set schedule.  If the judge on the schedule were unavailable, the case would default to the judge with the least seniority.  On the schedule that Tuesday, June 15, was Judge Walter Mansfield, who had recently been appointed to the Appeals Court; his replacement, Judge Murray Gurfein, “had exactly two days’ seniority when the Times first disclosed the Pentagon Papers on June 13” (Ungar 165).[42]   The Pentagon Papers case, one of the most significant First Amendment cases in a century, was Gurfein’s first case as a federal judge.

The Courts

            Two fundamental issues lay before Judge Gurfein:  did the Pentagon Papers pose a danger to national security?  If so, did the government have the power under the Espionage Law to restrain their publication?  There was no legal precedent; if the Times lost, it would be the first recorded use of prior restraint for national security purposes.  “There had never been one before in the history of the country,” recalls Goodale.[43]

            The First Amendment, which protected “the freedom . . . of the press” (22), was interpreted as prohibiting prior restraint.  In the 1931 Supreme Court case of Near v. Minnesota,[44] this prohibition was upheld with only one exception:  “No one would question but that a government [in wartime] might prevent . . . the publication of the sailing dates of troops and transports or the number and location of troops” (Arno 314-5).

            It was precisely this exception that the government cited in its effort to restrain the Times.  On Tuesday afternoon,[45] U.S. Attorney Whitney N. Seymour asked Gurfein for an injunction to prevent publication.[46]  After hearing oral argument and receiving short briefs from both sides, Gurfein issued a temporary restraining order pending a full hearing on Friday, June 18.  He was reluctant to become “the first judge in the history of the nation to impose prior restraint upon a newspaper” (Salisbury 259),[47] but he was also angry at the Times for refusing to halt publication voluntarily.[48]  He decided to prevent publication until the full hearing, when he could properly rule on the danger to national security.[49]

            At 5:30 on Thursday, briefs from both sides were sent to Gurfein.  The government made three main points:  that the Papers posed a national security danger (addressed in a separate, secret brief)[50]; that prior restraint was allowed in the case of national security; and that the Times had no legal right to obtain “stolen” secret documents and print them.

            The most important of the government’s assertions was that printing the Papers would jeopardize diplomatic relations:  other nations would be reluctant to deal with the United States if they thought it could not keep a secret.[51]  In addition, government’s decision-making processes could be revealed; the Papers included many communications between military officials, and the Defense Department was reluctant to give Russia or North Vietnam such a window into American military thought.[52]

            Secondly, the government argued that the First Amendment was not absolute when in conflict with national security; “under certain circumstances the freedoms of speech and press must give way to compelling government need” (Arno 313-4).[53]

            The third major argument raised by the government was that the Times had no right to publish classified material.  According to the Espionage Law of 1917,[54] anyone who “willfully communicates, delivers, [or] transmits” information “relating to the national defense which . . . the possessor has reason to believe could be used to the injury of the United States” was committing a felony.  “The mere fact of classification” (Arno 310), the government said, was enough to justify injunction; though the law did not provide for prior restraint, the brief stated that no subsequent punishment could undo the damage done by a release of secrets.[55]

            Just as the government’s primary burden was to prove that the Papers would endanger national security, it was the Times’ first argument in its response that they posed no such danger.[56]  The Times responded at length to the charge that foreign governments would be hurt by the leak; government “secrets” were printed on the front page of the Times almost every day without any objection.[57]  Such lax enforcement, the brief said, rendered the law so vague as to make its application to the Times unconstitutional.[58]  Finally, the Times justified the disclosure on the basis of the public’s right to know the actions of their government.[59]

            On the government’s second point, the Times agreed that prior restraint could be imposed to avoid a definite, immediate danger to national security; however, it argued, the government spoke only in generalities and therefore had no right to seek a prior restraint.[60]

            The third issue, whether the government had the right to enjoin the Times under the Espionage Law, occupied the most space in the Times’ brief.  The Times examined each clause of the law and argued that it would not allow a prior restraint:  the law was concerned only with preventing espionage in the traditional sense,[61] and it provided for subsequent punishment rather

than injunction beforehand.[62]

            On Friday, June 18, both sides entered Judge Gurfein’s courtroom.  Two hearings were scheduled, one in open court and one in camera.[63]  A full set of the Papers lay in cartons next to the government’s desk, guarded by security personnel.[64]  The government was prepared to open by asking the Times for a more comprehensive list of documents; Bickel, however, began by asking Gurfein if he could introduce “a new matter I would like to put before your Honor” (Arno 455).  That morning, a story under the headline “Documents Reveal U.S. Effort in ‘54 to Delay Viet Election” had appeared in the Washington Post and all of its wire services.  Excerpts from the Post were being carried across the globe over Reuters, AP and UPI newswires.  The Papers, it seemed, were out of control.[65]

            Ellsberg had been furious at the Times for obeying the restraining order.  He was prepared to go to jail to end the war and expected no less from the editors (Ungar 127).  When printing stopped, Ellsberg sought other outlets.[66]  The Washington Post, the Times’ major competitor, had been trying desperately to locate the Papers;[67] the day after the Times was restrained, Ellsberg gave a copy to Ben Bagdikian, the Post’s National editor, who brought them to Washington.[68]  The Post decided to start its series with an article on the 18th.[69]

            When the Post hit the streets, the Times was both upset at losing a scoop and glad that other papers were carrying its torch.[70]  Bickel argued in court that since the Post was free to publish, “there is nothing for your Honor to protect” (Arno 459) with an injunction,[71] but assured by Mardian that the government would seek to enjoin the Post, Judge Gurfein continued his hearing.[72]

            The government called four witnesses, two of whom described the labyrinthine classification procedures and two of whom testified on the danger to national security.[73]  Judge Gurfein, however, was not convinced by their testimony.[74]  At 2:30 p.m. on Saturday, June 19, he ruled that the government had not met its burden in an eloquent opinion describing the role of a free press in a democratic society.[75]  “The security of the Nation,” wrote Gurfein,

is not at the ramparts alone.  Security also lies in the value of our free institutions.  A cantankerous press, an obstinate press, a ubiquitous press must be suffered by those in authority in order to preserve the even greater values of freedom of expression and the right of the people to know.  (Arno 668)[76]

            The battle had ended, for the moment.  The Times could finally continue its series — but its victory was short-lived.  Just an hour after Gurfein announced his ruling, the government obtained a temporary stay from Appeals Court Judge Irving Kaufman.[77]   On June 22, the Court of Appeals (after viewing additional affidavits in a Special Appendix submitted by the government[78]) voted to send the case back to Gurfein,[79] asking for a longer hearing based on the dangers cited in the Appendix.[80]

            The Times appealed their decision to the Supreme Court.  The Post had by that time won at both the district and appellate levels, and the Times was forced to sit restrained while its competitor remained free to publish.[81]  On June 24, the Court granted certiorari[82] and restrained both newspapers pending a hearing on June 25.

            Solicitor General Erwin Griswold, who represented the government, changed tactics in this last hearing:  instead of claiming that everything in the Papers was dangerous, he focused on eleven specific items.[83]  He declared that the President’s authority to conduct foreign affairs hinged on his ability to keep information secret and that not enough time had been devoted to examining those secrets in the district courts.[84]

            Bickel’s argument focused on two issues.  First, he argued that the government was violating the separation of powers:  while the President could create guidelines for the executive branch to follow, he could not create his own statutary authority under which to restrain a newspaper.  Secondly, in order to preserve the First Amendment, the “link between the fact of publication and the feared danger” in a prior restraint case must “ . . . be direct and immediate and visible” (Arno 1225).[85]  William Glendon, arguing for the Post, focused on the government’s inability to show specific dangers that would directly result from publication.[86]  After several hours, the Court retired without any indication of when it would rule.  For four days, the newspapers, government, and public waited for the Court’s decision.[87]

            Finally, on June 30, the Court delivered nine individual opinions[88] and a short per curiam opinion to declare its ruling:  “‘Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.’[89] . . . The District Court . . . held that the Government had not met that burden.  We agree” (Arno 1235).  The Times and Post had won, by a margin of 6 to 3.  Three Justices had dissented, believing that there was not enough time for a proper investigation of the documents;[90] three had voted on the absolute position that no prior restraints could be afforded the government under the law;[91] and three more stated that prior restraint was admissible but that the government simply had not proved a danger.[92]  Seventeen days after the Times had shattered a lazy Sunday morning, the presses were finally free to start rolling again.

The Legacy

            When the Court announced its decision, the city rooms of the Times and Post rang with shouts of joy:  the press had emerged victorious from its great battle of principle.  In New York, Rosenthal shouted to the newsroom, “We won it!  We’ve all won it!  We’ve won the right to print!” (Arno 336).  “It was a huge victory for everybody,” says Goodale, “including the First Amendment and the New York Times”:  everybody, that is, except the Nixon Administration.[93]  The Pentagon Papers had exposed the government’s campaign of deception and misinformation that had characterized the Vietnam War; their disclosure shook the basic trust of the American people that the government could be relied on to tell the truth.[94]

            The legal issues posed by the Pentagon Papers case, however, have refused to go away.  Goodale terms the Pentagon decision a “double-edged sword”:  though the Times had won, it had been kept under a prior restraint — the first of its kind in the nation’s history — for sixteen days.  Even today, prior restraint remains at the forefront of issues regarding press freedoms,[95] and the Pentagon Papers remain at the center of the controversy.[96]  In the future, the 47 cumbersome volumes and thousands of pages of documents will be remembered, not for the history of the war they told, not for the government deception they exposed, but for the vital role they played in the stand taken by the New York Times to secure “the even greater values of freedom of expression and the right of the people to know . . . the marked traits of our national life that distinguish us from other nations under different forms of government” (Arno 668).[97]

Appendix — Four Primary Documents

Document 1:  The telegram sent by Mardian to Sulzberger.  The telegram has been reproduced as it appears in Arno, page 14-15.

NY K TIMES NY

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 14,15, 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 N. MITCHELL

                                                                                    ATTORNEY GENERAL

Document 2:  The public statement issued by the Times after receiving Mardian’s telephone call.  The statement has been retyped as it appeared in the New York Times on June 15, 1971, as printed in Arno, page xiii.

We have received the telegram from the Attorney General asking The Times to cease further publication of the Pentagon’s Vietnam study.  The Times must respectfully decline the request of the Attorney General, believing that it is in the interest of the people of this country to be informed of the material contained in this series of articles.  We have also been informed of the Attorney General’s intention to seek an injunction against further publication.  We believe that it is properly a matter for the courts to decide.  The Times will oppose any request for an injunction for the same reason that led us to publish the articles in the first place.  We will of course abide by the final decision of the court.

Document 3:  Executive Order 10501, which created the classification system in existence in 1971.  It was issue by Eisenhower and drafted by Herbert Brownell, who in 1971 was head of the Lord, Day and Lord law firm.  It is retyped as it appears in Gravel, page 229-30.

      1.  Top secret.  “information or material the defense aspect of which is paramount, and the unauthorized disclosure of which could result in exceptionally grave damage to the nation, such as leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans or intelligence operations, or scientific or technological developments vital to national defense.”

      2.  Secret.  “defense information or material the unauthorized disclosure of which could result in serious damage to the nation, such as jeopardizing the international relations of the United States, endangering the effectiveness of a program of policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations.”

      3.  Confidential.  “defense information or material the unauthorized disclosure of which could be prejudicial to the defense interests of the nation.”

Document 4:  Sections (d) and (e) of the Espionage Law, 18 U.S.C. §793, as amended and recorded in the House of Representatives Internet Law Library.

     (d) Whoever, lawfully having possession of, access to, control

   over, or being entrusted with any document, writing, code book,

   signal book, sketch, photograph, photographic negative, blueprint,

   plan, map, model, instrument, appliance, or note relating to the

   national defense, or information relating to the national defense

   which information the possessor has reason to believe could be used

   to the injury of the United States or to the advantage of any

   foreign nation, willfully communicates, delivers, transmits or

   causes to be communicated, delivered, or transmitted or attempts to

   communicate, deliver, transmit or cause to be communicated,

   delivered or transmitted the same to any person not entitled to

   receive it, or willfully retains the same and fails to deliver it

   on demand to the officer or employee of the United States entitled

   to receive it; or

     (e) Whoever having unauthorized possession of, access to, or

   control over any document, [etc., as above] . . .

     . . . Shall be fined not more than $10,000 or imprisoned not more than

   ten years, or both.

Works Consulted

Primary Sources

Bradlee, Ben.  A Good Life.  New York:  Simon and Schuster, 1995.

            This autobiography by the Washington Post’s executive editor provides an inside view of that newspaper’s decision to print the Pentagon Papers after the Times was enjoined.

Constitution of the United States.  Washington, D.C.:  Commission on the Bicentennial of the United States Constitution, 1987.

            The pocket-sized copy of the Constitution provides the text of the Bill of Rights and other Amendments.

Ellsberg, Daniel.  Papers on the War.  New York:  Simon and Schuster, 1972.

            Several of Ellsberg’s public speeches made and articles written during the Vietnam war, some explaining his motivation for leaking the Papers, are reprinted in this volume.

“Further Thoughts on Freedom of the Press.”  Editorial.  BusinessWeek 16 Oct. 1995:  158.

            The editors of BusinessWeek here gave their reasoning for opposing U.S. District Judge John Feikens’ injunction of their story on the Bankers Trust Tapes.  The editorial cites the Pentagon Papers case as one example of the unconstitutionality of prior restraint.

Glendon, William R.  “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:  24-6, 50.

            William 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.

Goodale, James C.  Telephone Interview.  19 Dec. 1995.

            James Goodale was a vice-president and general counsel for the New York Times in 1971.  Currently at the New York law firm of Debevoise & Plimpton, he consented to a taped interview in early December.  Quotes transcribed from the interview are used throughout the paper.

Goodale, James C., comp.  The New York Times Company v. The United States of America.  2 vols.  New York:  Arno Press, 1971.

            Because the Pentagon case flew through the courts so quickly, progressing from district court to the Supreme Court in only sixteen days, an official record of the case (with briefs and transcripts of hearings) was never assembled.  The New York Times, through its publishing subsidiary the Arno Press, took it upon itself to release what has become the most complete source of original court documents ever released on the case.  This treasure trove contains all of the public briefs and affidavits submitted to any court during the litigation, as well as the transcripts of open hearings.  (The secret briefs and transcripts of in camera hearings were not declassified until many years after these volumes were printed.)  The set begins with the government’s initial filing to the District Court and ends with the opinions of all nine Supreme Court Justices.

Gravel, Mike.  Citizen Power.  New York:  Holt, Rinehart and Winston, 1972.

            The populist Alaskan Senator who released the Pentagon Papers to the U.S. Senate wrote this book containing his platform; he addresses the Papers in a chapter on government overclassification.

Griswold, Erwin.  Address.  Association of American Law Schools Convention.  New York, 29 Dec. 1972.  Rpt. as “The Pentagon Papers Case.”  Yearbook.  Ed. by Supreme Court Historical Society.  1984.  1112-6.

            In this speech, Griswold discussed his experiences as Solicitor General of the United States, including his involvement with the Pentagon case.

Griswold, Erwin.  “Secrets Not Worth Keeping.”  Editorial.  Washington Post 15 Feb. 1989, sec. A:  25.  Lexis/Nexis.

            Eighteen years after the Pentagon case was argued, Erwin Griswold wrote this editorial for the Washington Post in which he stated that he had never seen a danger to national security from the publication of the Papers.

Holland, Kelley, Linda Himelstein, and Zachary Schiller.  “The Bankers Trust Tapes.”  BusinessWeek 16 Oct. 1995:  106-111.

            For several weeks, BusinessWeek was prohibited by U.S. District Judge John Feikens from publishing this article, based on Procter & Gamble’s RICO briefs.  The material was confidential, like the Pentagon Papers, and was also put under prior restraint.

McNamara, Robert S., with Brian VanDeMark.  In Retrospect.  New York:  Times Books-Random House, 1995.

            The former Secretary of Defense, Ford executive, and head of the World Bank included in his autobiography his decision to begin the study of America’s involvement in Vietnam that resulted in the Pentagon Papers.

Procter & Gamble Company v. Bankers Trust Company v. McGraw-Hill Companies, Inc.  No. 95-4078.  1996 U.S. App. LEXIS 3817.  1996 FED App. 0076P (6th Cir.).

            This ruling by the U.S. Court of Appeals for the 6th Circuit overturned Judge Feikens’ injunction that had prevented BusinessWeek from printing the Bankers Trust tapes.  The court ruled that no justification existed for a prior restraint that would meet the burden set by the Pentagon case.

Reston, James.  Deadline.  New York:  Random House, 1991.

            Reston was in the top ranks of the Times’ editorial staff when the Pentagon Papers crisis arrived, as he records in this autobiography.  He provides an inside view of the Times’ decision and the arguments following the Mitchell telegram.

Rosenthal, A. M.  “Thanks to Bold Counsel, the Pentagon Papers Made It Into Print.”  Editorial.  Los Angeles Daily Journal 19 June 1991:  16.

            This editorial by the onetime managing editor of the Times conveyed Rosenthal’s determination that the press continue to stand firm on its principles, even when confronted by the government or business interests.

Rosenthal, A. M.  The New York Times and the Pentagon Papers:  An Address by A. M. Rosenthal.  Tucson, Arizona:  University of Arizona Press, 1971.

            In 1971, the University of Arizona awarded its annual John Peter Zenger Award for freedom of the press to the New York Times in recognition of its brave stand on the Pentagon Papers.  Rosenthal accepted the award in the name of the Times and discussed in his acceptance speech the duty of the press to provide information to the public.

Seymour, Whitney North Jr.  “Press Paranoia — Delusions of Persecution in the Pentagon Papers Case.”  New York State Bar Journal Feb. 1994:  10-12, 49.

            This article by the former U.S. Attorney for the Southern District of New York was written as a response to Glendon’s earlier article; taking many arguments from his autobiography, Seymour supports the government’s actions during the Pentagon case and sharply criticizes the conduct of the newspapers.  He selects limited quotes out of context from the work of Sanford Ungar  (who would have disagreed sharply with Seymour) to back up his arguments.

Seymour, Whitney North Jr.  United States Attorney.  New York:  William Morrow and Company, 1975.

            The U.S. Attorney’s autobiography includes a discussion of his role during the litigation, showing in great detail the friction between his office and Mardian’s over legal strategy.

Sheehan, Neil.  Introduction.  The Pentagon Papers.  By Sheehan, Hedrick Smith, E. W. Kenworthy and Fox Butterfield.  Ed. Gerald Gold, Allan M. Siegal and Samuel Abt.  New York:  Bantam Books, 1971.  ix-xvii.

            This volume is a compilation of all of the New York Times’ articles and editorials concerning the Pentagon Papers, both before the injunction was issued and after it was lifted.  Sheehan’s introduction summarizes the history of the War as the Pentagon Papers told it.

Sheehan, Neil.  “The Covert War and Tonkin Gulf:  February-August, 1964.”  The Pentagon Papers.  By Sheehan et al., Ed. Gerald Gold et al.  New York:  Bantam Books, 1971.  234-270.

            This article was the first based on the Papers to be printed in the New York Times; it details U.S. involvement shortly before the Gulf of Tonkin incident.

“The Vietnam Documents.”  Editorial.  The New York Times.  16 June 1971.  Rpt. in Sheehan et al.  The Pentagon Papers.  New York:  Bantam, 1971.  644-5.

            Published the day after the injunction was issued, this editorial sought to explain the reasoning behind the Times’ publication of the Pentagon Papers.

“The Vietnam Papers.”  Editorial.  The New York Times.  21 June 1971.  Rpt. in Sheehan et al.  The Pentagon Papers.  New York:  Bantam, 1971.  646-8.

            This editorial, printed the day before the Times’ Appeals Court hearing, praises Gurfein’s decision to lift the restraint.  It also castigates the government for engaging in a secret war and then seeking to censor the efforts to bring those secrets to light.

18 U.S. Code. Sec. 793.  United States Code. U.S. Code Server, House of Representatives Internet Law Library. “http://www.pls.com-8001/his/usc.html”.

            The House of Representatives maintains an indexed, searchable database (accessible via the Internet’s World Wide Web) of much of the country’s code of federal law.  This particular section of the U.S. Code is the Espionage Law cited by the government in its complaint against the Times.

Secondary Sources

Hammonds, Keith, and Catherine Yang.  “BusinessWeek vs. the Judge.”  BusinessWeek 16 Oct. 1995:  114-118.

            This article provided the story of BusinessWeek’s court fight to get the Bankers Trust Tapes into print, following the litigation from the District Court to Justice Stevens’ emergency review and back.

Powe, Lucas, Jr..  The Fourth Estate and the Constitution.  Berkeley, California:  University of California Press, 1991.

            Powe’s book analyzes many of the legal issues facing the press, often called the “Fourth Branch of Government.”  His chapter on prior restraint focuses mainly on the Pentagon case and the controversy surrounding it.

Rudenstine, David.  “The Pentagon Papers Case:  Recovering its Meaning Twenty Years Later.”  Cardozo Law Review  12 (1991) :  1869-1913.

            David Rudenstine was one of the first authors to obtain a declassified record of the government’s secret briefs and affidavits used to prove their assertion of danger to national security.  His work is one of the most complete sources of information on the government’s fears regarding the publication of the Papers.

Salisbury, Harrison.  Without Fear or Favor.  New York:  Times Books, 1980.

            The Times reporter’s history of the New York Times, covering the paper from its purchase by Adolph Ochs in 1896 to the late 1970s, places special emphasis on the Times’ publication of the Pentagon Papers.  It includes some primary recollections of the author in addition to information gathered from others at the Times.  Salisbury’s work was recommended to me by both Mr. James Goodale during an interview and Mr. Max Frankel in a letter.  The book also provides information on the in camera sessions which had recently been declassified.

Salter, Kenneth.  The Pentagon Papers Trial.  Berkeley, California:  Editorial Justa Publications, 1975.  1-13.

            After the government lost in its effort to censor the Papers, it started to prosecute those who had been responsible for the leak; Ellsberg and Russo were indicted and brought to trial in Los Angeles.  This book, intended as a textbook for the study of the trial, provides transcripts of the hearings.  It also tells how the case was dismissed after the government’s “Plumbers” violated Ellsberg’s right to privacy by breaking into his psychiatrist’s office.

Ungar, Sanford J.  The Papers & The Papers.  New York:  Columbia University Press, 1972.

            Sanford Ungar reported for the Washington Post in 1971 and was assigned to cover the legal battle over the Pentagon Papers.  His book, written only one year after the court battle, provides a comprehensive look at the legal and political issues related to the publication of the Pentagon Papers.  The decision-making processes of the New York Times and the Washington Post are analyzed in great detail, as are the various issues involved in the litigation.  This is one of the most useful secondary sources available on this topic.

[1] Parenthetical references to The New York Times Company v. The United States, edited by James Goodale and printed by the Arno Press, will be written as (Arno page#).

[2] McNamara was concerned that the Vietnam study be objective:    “I told [John McNaughton, Assistant Secretary of Defense for International Security Affairs,] to cast his net wide, including relevant papers not just from our department but also from the State Department, the CIA, and the White House. . . . ‘Tell your researchers not to hold back,’ I instructed.  ‘Let the chips fall where they may’” (McNamara 280).  Leslie Gelb, a member of the ISA staff, was placed in charge of the project and designated by McNaughton to lead the Vietnam History Task Force; he later became a columnist for the New York Times.  The Task Force, largely comprised of defense experts, history professors, military officials, and members of the foreign service, included Richard Ullman and Ernest May, history professors at Princeton and Harvard, respectively; Melvin Gurtov and Hans Heymann, defense experts employed at the Rand Corporation, a think tank specializing in defense and foreign policy; Richard Holbrooke, then a young career officer in the Foreign Service; William Kaufman, of the Brookings Institute; and some twenty-nine other researchers.

[3]Though originally commissioned to study the war only up to 1967, the researchers continued to update their history as the war developed, stopping the month the Paris peace talks began in May 1968 (Sheehan, Introduction ix).

[4] This Santa Monica-based company functions as a think tank for the Defense Department, often called upon for analyses or recommendations on policy.

[5] A true “hawk,” Ellsberg lectured and lobbied in favor of Johnson’s policies and the war effort, frequenting universities and Capitol Hill until he left for Vietnam in 1965 (Ungar 47).  During much of this time, he drifted back and forth between the public and private sectors, working full-time at Rand but sometimes called back to Washington as a consultant for the Defense Department.

[6] Ellsberg later wrote that by  June of 1966 he was sure that “the war was stalemated.  By the next year I knew it would remain so.  Two years of field work had discredited, in my eyes, any hopes of success, in almost any terms, in Vietnam . . . ” (16).

[7] Two of the fifteen original copies of the 7,000-page study were given to the Rand Corporation for its secret files.  One was kept at Rand headquarters in Santa Monica, California; the other was kept in the files of its field office in Washington.  Ellsberg was allowed to keep the Santa Monica copy in a safe in his office during this research period but was forced to sign documents stating “that he would neither reproduce nor alter them” (Ungar 64).

[8] The war, believed Ellsberg, had been conducted behind a closed curtain of secrecy; he hoped that the public would turn against it once they learned the truth about its origins:  “Above all, crucial data on the bureaucratic decision process have been closely guarded . . . and publicly lied about. . . . It was in this belief that I undertook, beginning in the fall of 1969, to reveal to Congress and the American people . . . the Pentagon Papers” (Ellsberg 12).

[9] The four other volumes, the last four of the set, described various peace initiatives undertaken by the Johnson administration, some of which were then still in progress.  Ellsberg explained his refusal to release these volumes, reports Ungar, by saying that he “didn’t want to get in the way of the diplomacy. . . . I wanted to get in the way of the bombing and killing” (83-4)

[10] Ellsberg was assisted in this task by a former Rand employee named Anthony Russo.  Throughout the fall of 1969, Russo, Ellsberg, and Ellsberg’s children Robert and Mary copied 43 volumes of the study on the xerox machine of an ad agency owned by a friend of Russo, Lynda Sinay.

[11] Senator J. William Fullbright, chairman of the Senate Foreign Relations Committee, was one of the first to be offered the Papers and turned them down; he did, however, press the Nixon Administration to release them on its own.  When the Administration refused to do so, he continued his attacks on the floor of the Senate and asked “that the first enterprising reporter who obtains a copy of this history . . . share it with the Committee” (Salisbury 74).

[12] Sheehan’s essay appeared in the New York Times Book Review on December 27, 1970.  A former UPI correspondent, Sheehan had spent several years in Vietnam before joining the Times.  Like Ellsberg, he was disenchanted with the war effort and the brutality he saw there:  in his book review, Sheehan declared that “the country desperately needs a sane and honest inquiry into the question of war crimes and atrocities in Vietnam . . . Anyone who spends much time in Vietnam sees acts that may constitute war crimes” (Salisbury 84).

[13] Ellsberg had decided early on that the New York Times would be his best choice as an outlet for the Papers; in the fall of 1970, he had approached Edwin Diamond (formerly on the staff of Newsweek) and asked him about the internal structure of the newspaper:  “Where is power at the Times?  Who runs what?” (Ungar 77). 

[14] Ungar quotes a “high-ranking Times executive” as wondering, “What are we going to learn from yet another Pentagon history?” (86).  A different opinion was held, however, by James B. Reston, a Times columnist and one of the most influential men at the paper.  When Sheehan was first offered the documents in early March, he conferred with Robert Phelps, the news editor at the Times’ Washington Bureau, who told Sheehan to ask Reston’s opinion.  Reston listened to Sheehan’s brief description of the Papers and told him, “You have permission to proceed, young man.  If you get it you will win the Pulitzer Prize for it” (Salisbury 81).

[15] Among the more shocking revelations to come out of the Pentagon Papers were that early in the Eisenhower Administration the U.S. Government had made a covert decision to undermine the Geneva Accords and illegally begin a program of sabotage in North Vietnam; that President Kennedy had expanded the involvement of the U.S. in South Vietnamese politics, knowing in advance of the coup that toppled Ngo Dinh Diem even as the U.S. ambassador, Henry Cabot Lodge, pleaded ignorance to Diem while the coup was in progress; that even before the Gulf of Tonkin, Johnson had expanded the range of sabotage operations in North Vietnam in flagrant violation of the Geneva Accords; that Johnson had ordered the drafting of a resolution giving him authority to expand the war that would be ready to be used — at any time — in the event of an incident like Tonkin; and that despite government denials, the heavy bombing of North Vietnam, unpopular at home, had not had any significant military impact on the Viet Cong and North Vietnamese but had killed civilians by the thousands.

[16] The Papers, to Ellsberg, seemed to divulge Rule 1 of American involvement in Vietnam:  “Do not lose the rest of Vietnam to Communist control before the next elections” (102).  One document in particular demonstrates the skewed priorities of the U.S. military force there:  a memo from McNaughton to McNamara included in the Papers set U.S. goals in South Vietnam as follows, reprinted verbatim in the Times:

      “70 pct. — To avoid a humiliating U.S. defeat (to our reputation as guarantor).

      “20 pct. — To keep SVN [South Vietnam] (and then adjacent) territory from Chinese hands.

      “10 pct. — To permit the people of SVN to enjoy a better, freer way of life.

      “Also — To emerge from crisis without unacceptable taint from methods used.

      “NOT — To ‘help a friend,’ although it would be hard to stay in if asked out” (Sheehan, “Covert” 255).

The revelation that their government was more interested in cleaning egg off its face than protecting the people of South Vietnam was disconcerting to many Americans.

[17] It was this discovery that truly convinced the editors and reporters of the Times of their duty to print:  “What was the reason that impelled the Times to publish this material in the first place?  The basic reason is . . . that we believe ‘that it is in the interest of the people of this country to be informed. . . .’  A fundamental responsibility of the press in this democracy is to publish information that helps the people of the United States to understand the processes of their own government, especially when those processes have been clouded over in a hazy veil of public dissimulation and even deception” (“The Vietnam Documents” 644).

[18]   The sheer scope of the project, detailing the development of the war throughout its history, also had a great impact upon the Times reporters and editors.  Times managing editor A. M. Rosenthal later described his reaction to the Papers as follows:  “It was like opening a box labeled ‘Thirty years of American history.’  Inside the box are men of power, each group in its own little compartment.  Behind them they can see only dimly and ahead of them not at all. . . . But now the reader can” (Address 12).

[19] The Times treated the project with care; they were concerned that the government or rival papers would learn of their efforts.  “Project X,” as it was named by Times foreign editor James Greenfield, was conducted at the Jefferson Hotel in Washington so that nothing unusual would be observed at the Times’ bureau office.  Sheehan, Times reporters Hedrick Smith, E. W. Kenworthy, and Fox Butterfield, worked at the hotel with assistant foreign editor Gerald Gold for the next two weeks before moving the project to New York.

[20] Goodale had first learned of the story from Max Frankel a few weeks earlier at the annual Gridiron dinner, a journalistic function in Washington.  “The circumstances made it seem somewhat casual,” says Goodale. The description of the story “was not complete, and so my reaction was that I had to do some research on what law applies when you have classified documents . . . I didn’t know the details.”

[21] Goodale recalls that “My position was that a story could be published about the Pentagon Papers . . . but that there was a tremendous risk that we would be enjoined.”

[22] Brownell, who was a powerful figure in the Republican Party, was also a close friend of Richard Nixon.  He had been Attorney General under President Eisenhower, in which capacity he had drafted the classification guidelines still in effect in 1971.  “That being the case,” remembers Goodale, “he didn’t feel that he could attack the statutes as being unconstitutional.”  What Goodale refers to as a statute was actually an executive order, as he clarified later in the interview.  Executive Order 10501 (pertinent sections of which can be found in the Appendix) had been issued under Eisenhower and amended by Kennedy.  It provided for three levels of classification:  Confidential, Secret, and Top Secret.  Because it was an executive order and not a statute enacted by Congress, it had no force of law on anyone not in government service, as the Times would later argue in court.

[23] Reston records that “as [Loeb] saw it, the Times was in possession of stolen goods officially classified as top secret.  We should not, he insisted, publish them but return them and ask that they be declassified” (336).  Goodale’s philosophy differed from that of Lord, Day and Lord:  “[Loeb] thought his job was to keep the Times out of trouble.  [Goodale] . . . disagreed.  He thought that it was the duty of the Times not to stay out of trouble but to defend the First Amendment . . .” (Reston 337).

[24] The Times followed a complex procedure for verifying the information in the Papers and for sorting out what should be covered in the stories:  “Events were listed on a huge chart, and an enormous card file was developed as a cross-reference for newspaper stories and decisions.  The documents in the Pentagon Papers were ‘rated’ and ‘gradiated’” (Ungar 94).  Greenfield, who had worked in the State Department for several years and was familiar with classified documents, had the task of verifying the authenticity of the Papers.  “First we had to make sure the papers were genuine,” wrote Rosenthal.  “[Greenfield] headed a page-by-page examination.  He convinced us they were not the product of dormitory typewriters” (“Thanks” 16).  The work was frustratingly slow to produce results:  after two weeks in New York, Gerald Gold declared, “We started at cherry-blossom time in Washington and it is now May 5 in New York and we are still working and not a line has yet been written” (Salisbury 136).  The reporters and editors analyzing the Pentagon Papers had begun working in the Times building on West 43rd Street but later moved to a suite at the New York Hilton hotel because of a “lack of quiet, of space, and of appropriate provisions for secrecy” (Ungar 95).

[25] The news staff of the Times tended to favor publication, while the corporate staff tended to be opposed, as Rosenthal records:  “All of the reporters and editors directly involved were strongly for publication.  Outside the news department were editors and executives who . . . felt [t]he Times should not mount such a massive challenge to government secrecy and feared the courts would rule against us” (“Thanks” 16).  During the course of the argument, several alternative plans were suggested for getting the Pentagon Papers into print.  Goodale suggested a single one-day package dedicated to the Papers so that the government would be unable to prevent publication of the rest of the series through injunction.  Two influential editors at the Times, John Oakes, the editor of the editorial page, and Lester Markel, the former head of the Sunday department, favored publishing the stories without the classified documents to which they referred; they hoped that the newspaper would have a stronger legal position if it did not actually print classified documents.  Scotty Reston, who had given the initial go-ahead to Sheehan, strongly favored the original plan of publication:  the Times would print a ten-day series of stories based on the documents, as well as some of the documents themselves.  He even threatened to publish the Papers himself should the Times refuse:  “When my turn came, I said I was for printing everything, that if we didn’t somebody else would, and if nobody else did, I would print them myself in our little family weekly, the Vineyard Gazette” (Reston 337).  That paper was published on Martha’s Vineyard, an island off the Massachusetts coast; “During the vacation season,” noted Ungar, “when many of the most influential members of the Washington-New York establishment are on the island, the Papers might have had almost as much impact there as in the Times” (100).  Reston, however, took his own suggestion less seriously, as he wrote about the Times’ Supreme Court victory:  “I was delighted, but told my associates that the thought of publishing this ‘world scoop’ in the Vineyard Gazette was so funny that I almost, but not quite, wished the Times had taken Louis Loeb’s advice” (338).

[26] Ungar records this incident as follows:  “[The editors] made a few frantic revisions and submitted it to Sulzberger . . . There were new discussions among the executives at this point, with some of them, clearly disappointed in Sheehan’s draft, asking:  ‘Is this really worth it?’”(Ungar 103).  At this point, Goodale was sure that “whatever control he had over the situation had been lost and that, in the end, the Times would not publish the Papers” (Salisbury 183).  Without committing as to whether or not the Papers would be published, Sulzberger established a temporary six-page-per-day limit on the stories.  This made the job of the reporters in the Hilton much more difficult; they had planned on a ten- or twelve-page limit, and Sulzberger’s decision forced them to start cutting their drafts by half.

[27]Sydney Gruson, a special assistant to the publisher, was also given the right to check the articles; both Bancroft and Gruson had worked extensively with secrets in past government service.

[28] Ironically, the story that was to captivate the nation’s attention in the coming weeks was virtually ignored its first day out.  “I spent the weekend at my house in the Berkshires,” wrote Salisbury, “went to lunch with a company of addicted Times readers, in late afternoon met another group for cocktails and yet a third at dinner . . . Not one mention of the Pentagon Papers.  My God, I said to myself, the story is a bust!” (215).  The first article of the series, focusing on Johnson and the covert war, had been given much less space on the front page than the reporters working on the project had expected.  “I don’t think people would have paid that much attention to [the Papers] if the government wouldn’t have brought their attention to them,” says Goodale.

[29] Meeting with H.R. Haldeman on Sunday morning, Nixon stated that the Papers would damage the reputations of Kennedy, Johnson, and McNamara most of all; he said that it would “hurt the war” and “cause terrible problems with [South Vietnam]” but “doesn’t hurt us”; the “key is for us to keep out of it” (Rudenstine 1875).  [Emphasis in original.]  Senator Robert Dole of Kansas, then Chairman of the Republican National Committee, was elated at the Times’ disclosure and thought the Papers “a bonanza for the Republicans . . . [They] were embarrassing to the Democrats and particularly to President Johnson” (Salisbury 233).

[30]  The release of the Papers had infuriated Kissinger, who urged Nixon to act:  “The fact that some idiot can publish all of the diplomatic secrets of this country on his own is damaging to your image, as far as the Soviets are concerned, and it could destroy our ability to conduct foreign policy.  If other nations feel that we can’t control internal leaks, they will never agree to secret negotiations” (Rudenstine 1876).   Nixon had never liked the media — “The Nixon Administration was out to get the press,” Goodale recalls, citing a view widely held by newspapers of his day — and the President commented to Haldeman that the leak of the Papers was “criminally traitorous” (Rudenstine 1875).  Playing on Nixon’s dislike of the Times and fears of appearing weak, Kissinger managed to convince him that the danger to his reputation would outweigh any political gain.  In addition, the State Department had been working for months to plan negotiations for Nixon’s eventual trip to China, and Kissinger warned the President that the Chinese might break off the talks.  Nixon switched sides completely, urging vigorous prosecution of those involved.

[31] Originally, Nixon had ordered H. R. Haldeman, his chief of staff, to find a statute that would allow the criminal prosecution of the Times — an after-the-fact punishment, not a prior restraint.  Mardian had first learned about the Pentagon Papers in the New York Times on Monday, June 14; after arriving in Washington early in the morning from the West Coast, he noticed that the article on the “Consensus to Bomb” (Arno 40) was the second of a series and hurriedly sent for Sunday’s paper.  He also called his superior, Attorney General John Mitchell, who had already learned of the story in a telephone call from the Secretary of Defense.  Mitchell and Mardian also conferred with William H. Rehnquist, at the time Assistant Attorney General for the Office of Legal Counsel and later appointed by Nixon to the U.S. Supreme Court.

[32] The Pentagon Papers were as much of a tightly held secret within the government as outside:  all the Justice Department knew about the documents they had learned from memoranda issued by Defense Secretary Melvin Laird and describing “what the Papers were, who had contributed to their preparation, and who had received the fifteen copies” (Ungar 109).  Mardian may have feared the unknown almost more than he feared the release of secrets, as Rudenstine notes:  “Because government officials were unfamiliar with the Pentagon Papers, and did not know exactly what documents the Times possessed . . . their worst fears escalated as they speculated about what the next edition of the newspaper would contain” (1885).  Laird, however, was unable to find much more:  “The fact was there was no one left in the Defense Department who was familiar with the study.  Doolin, the Deputy Secretary of International Affairs, had not been in the department when the study was done. . . . The specialists involved in the project had left the government” (Salisbury 237).

[33] Rudenstine attributes Mardian’s decision for prior restraint to politics:  “Mardian could have concluded that future Times installments might retard the peace process and harm intelligence interests, but that those potential injuries were too uncertain to warrant a prior restraint. . . . [T]hat was not to be.  Mardian’s sense of what the government ought to do was influenced by his political perspective.  As he saw it, the government should not have to risk harm to the nation’s security while unelected newspaper editors made judgments about which top secret document to publish. . . . In addition, Mardian . . . was deeply suspicious of what he viewed as the liberal eastern press.  Whatever uncertainty he might have had about the necessity or wisdom of trying to stop the Pentagon Papers series was further discounted because it was the Times that had published it” (1886).

[34] The telegram stated that the Times’ stories contained “information relating to the national defense”, that its publication was “prohibited by . . . the Espionage Law,” and that “further publication . . . will cause irreparable injury to the defense interests of the United States”  (Arno 14-15); it therefore asked the Times to cease publication and return the documents to the government.  A complete text of the telegram can be found in the Appendix.

[35] Due to an incorrect telex number, the telegram was first sent to a fish company on the Brooklyn waterfront before it was redirected to the Times (Salisbury 241).

[36] Goodale, who had already gone home for the day, reached his apartment just as his telephone stopped ringing; guessing what had happened, he called Bancroft at the Times.  Bancroft told him about the telegram, and Goodale answered quickly, “That’s easy.  We won’t stop publication.  We won’t do that”; “I’m not too sure,” Bancroft replied (Ungar 121).

[37] The text of the Times’ public can be found in the Appendix.

[38] Rosenthal saw great significance in the Times’ standing firm:  “‘Think of what it would have meant in our history and in the history of the newspaper business,’ [he] said months later, ‘if the headline had been “Justice Department Asks End to Vietnam Series and Times Concedes.”  I think it would have changed the history of the newspaper business’” (Ungar 122).  Goodale remembers that “the concern at that point was not whether the case would set a precedent, but [whether] if the Times obeyed the telegram . . . such obedience would set a precedent.”

[39] “That was very unusual,” Goodale observes in a remarkable understatement.

[40] Bickel, a professor of constitutional law who specialized in First Amendment issues, had become acquainted with Goodale through the latter’s involvement in the Caldwell case, which concerned the right of newspapers to keep their sources confidential.  Caldwell, a Times reporter, had refused to testify before a grand jury as to the sources he used for a story on the Black Panthers.  Bickel had supported the Times’ position in the case.  (Later, the Supreme Court combined Caldwell with three similar cases into Branzburg v. Hayes and decided against the newspapers in July of 1972.  At the time of the Pentagon Papers decision, however, the latest appeals court judgment had been in the Times’ favor.)

[41] As the Times’ lawyers worked through the night, the government’s courtroom lawyers did just the opposite.  Silvio Mollo, chief assistant U.S. Attorney in New York, was reached at 6:45 a.m. on Tuesday morning.  Michael D. Hess, Mollo’s chief of civil cases, was notified at 7, and the U.S. Attorney, Whitney North Seymour, was not reached until 7:15.  The delays were not intentional; for one reason or another, the three lawyers were away from their phones on Monday night.  Seymour recounts his wake-up call as follows:  “At 7:15 on the morning of Tuesday, June 15, 1971, the telephone rang in my motel room in Washington D.C.  Still only half-awake, I reached over and picked up the receiver.  A male voice announced, “This is the White House switchboard.  I have a call for you from Assistant Attorney General Mardian. . . . ‘Where have you been?’ he demanded.  ‘We have been calling your room every half hour since midnight.’ . . . Apparently, the motel operator had been mistakenly ringing the telephone in the adjoining room, occupied by my teen-age children.  The children had slept right through the noise” (U.S. Attorney 190).  The lawyers were forced to work with affidavits and briefs prepared by Mardian and J. Fred Buzhardt, general counsel to the Defense Department, both of whom had stayed up all night.

[42] Gurfein’s only previous official action as a federal judge had been to naturalize a group of new citizens; during the ceremony he “had given . . . a talk about the Bill of Rights and the First Amendment, which he suggested was one of the chief differences between the United States and some other systems” (Salisbury 258).

[43] The novelty of the Pentagon Papers case was that prior restraint would be imposed on the basis of national security.  There was, however, a very long history of prior restraint being used for other reasons. The repressive English licensing system for printers in the seventeenth century had created an aversion to prior restraint in English common law; Blackstone, one of the premier authorities on English common law, had denounced prior restraint in his Commentaries (Powe 140).  When the American colonies declared independence, they brought with them the concept that no speech might be punished before its publication, only afterward.  The doctrine was that prior restraint would place an unreasonable “chill” on the First Amendment; a newspaper editor, afraid of an injunction (a civil action which would not entitle the paper to a jury trial), might not print items that were legal but were close to the line.  Though the same logic could be applied to a criminal statute providing for punishment after publication, prior restraint was seen as more likely to stifle otherwise acceptable speech.  As Bickel argued to the Supreme Court, “Prior restraints fall on speech with a special brutality and finality and procedural ease all their own . . . If the criminal statute chills speech, prior restraint freezes it” (Arno 1224).

[44] In Near, the Supreme Court struck down a Minnesota “Gag Law” allowing injunctions against tabloid newspapers.  The Saturday Press of Minneapolis had recently charged that County Attorney Floyd Olson was protecting a “Jewish gangster . . . in control of gambling, bootlegging and racketeering in Minneapolis” (Powe 143); Olson, enraged, successfully obtained an order preventing the publisher, Jay Near, from ever printing a “malicious, scandalous and defamatory newspaper” (Powe 142) again.  Chief Justice Hughes wrote for a majority of five Justices when he described the Gag Law as “the essence of censorship” (Arno 314).

[45] Originally the hearing had been scheduled for 10 a.m., but it was found that the government had accidentally cited the wrong section of 18 U.S.C. §793 in its complaint — it had mentioned §793(d), which discussed an authorized person leaking information, instead of §793(e), which said the same for unauthorized persons.  The Times’ lawyers at first tried to get the suit dismissed on these grounds, but Gurfein allowed the government to amend its complaint.  The time required to do so delayed the oral argument by a few hours.

[46] Two affidavits were submitted with the government’s motion:  one by Mardian merely established that the Times had printed the documents and intended to continue, while another by Buzhardt alleged in general terms that “publication . . . would further prejudice the defense interests of the United States and would result in irreparable injury to the national defense” (Arno 3-4).

[47] This phrase was used by Bickel in oral argument; Salisbury goes on to add that “this argument made Gurfein wince” (259).

[48] The government’s lawyers were also quite angry at the Times;  Seymour later wrote of his frustration at what he called the irresponsibility of the Times for continuing to print rather than stopping and consulting with the government as to national security:  “The Times’ obsession with being scooped prevented them from consulting independent experts about possible damage to the nation’s international operations from the publication of ‘top secret’ documents.  Was it so unreasonable for the government to go to court and ask that publication be postponed until such expert opinions could be obtained and considered?” (“Press” 12,49).

[49] In his opinion, Gurfein explained that “Any temporary harm that may result from not publishing . . . is far outweighed by the irreparable harm that could be done to the interests of the United States Government if it should ultimately prevail” (Arno 25).  He did not, however, order the Times to give its copy of the Papers to the court or the Defense Department to physically prevent it from making extra copies; he stated that “I do not believe that the Times will willfully disregard the spirit of our restraining order” (Arno 24).  The government continued its push to see the documents held by the Times:  the day after Gurfein decided to put the Times under restraint, the government went back into court with a motion asking the Times to show its documents to the government “in order to ascertain what documents defendants have in their possession . . . so that the national defense interests of the United States may be properly protected” (Arno 222).  The Times, however, responded in its brief by citing “the utter and total failure of the United States to demonstrate any legitimate need [emphasis in original] for the production of the sought documents.  Since the United States, by its own statements in court . . . already has some 15 original copies . . . it surely cannot require [the Times’] xerox copy to learn the contents of the documents” (Arno 230).  An affidavit from James Greenfield explained that the government might be able to tell from fingerprints and handwritten notes on the Papers who had stolen them and supplied them to the Times.  According to the latest ruling in the Caldwell case (see note 40), the government did not have the power to compel a newspaper to reveal its sources, even if the sources were wanted for a crime.  Gurfein decided to stay with his original decision to allow the Times to keep its documents if it provided the government with a list of what parts of the Papers it held.

[50] Court documents are matters of public record unless they are specifically sealed.  Since the government had to refer to secret documents for the purpose of demonstrating why they should not be made public, it made little sense to do so in a public brief.  The secret briefs and hearings began to be declassified during the Carter Administration, although many were not declassified until much more recently.  Rudenstine’s work was one of the first to rely heavily on these now-available sources.

[51] Before the hearing, Australia, Sweden and Canada had complained to the State Department about the leak; the Papers revealed these countries’ roles in failed efforts at fostering negotiations between the U.S. and the North Vietnamese which had previously been kept secret.  Before Gurfein, the U.S. asserted that the support of Poland, Thailand, South Korea, and even South Vietnam was at stake, with devastating consequences for the American war effort.  “Let me make myself clear,” wrote William B. Macomber, Deputy Under-Secretary of State for Administration; “I am not referring here to such relatively minor problems as embarrassment or inconvenience.  I am referring to specific and serious damage to United States foreign policy and security interests.  I refer to the mortal damage such disclosures constitute to the diplomatic process itself.  Without confidence by nations that they can in fact speak to the United States on a confidential basis, there will be no meaningful American diplomatic process” (Rudenstine 1898-9).  The government alleged that “there is much material in these volumes which might give offense to South Korea, to Thailand, and to South Vietnam, just as serious offense has already been given to Australia and Canada” (Rudenstine 1893).  The Koreans might withdraw their troops, then numbering almost fifty thousand, “faster than is currently envisioned”; Thai support was key because access to Thai air bases was “essential to the safety and well-being of the United States forces now deployed in Southeast Asia” (Ibid).  In the case of South Vietnam, the U.S. was terrified that the disclosure of its role in the coup that ousted Diem might destabilize South Vietnamese politics; that General Duong Van Minh would “claim that disclosure . . . at this time was designed to discredit [him] and thereby assure the election [in October of 1971] of ‘a puppet regime of President Thieu.’ . . . Publication of this information would ‘diminish the stature of present Vietnamese political figures,’ including then President Thieu and Vice President Ky” (Rudenstine 1894).  Such turmoil, the administration feared, might induce South Vietnam “to terminate their cross-border operations and return their participating forces to bolster the security of the homeland.  Particularly in the case of Cambodia, withdrawal of these forces would allow the North Vietnamese and the Viet Cong forces to reestablish the series of base areas along the Cambodian-South Vietnamese border from which they could mount increased military activity throughout South Vietnam” (Rudenstine 1893).  The long process of “Vietnamization,” Nixon’s program of turning responsibility for the war over to the South Vietnamese government, might be slowed:  “the Vietnamization program was premised on the assumption that the ‘planned support which we expect from our allies . . . will continue without major change,’ and that this military balance was a ‘delicate’ one that had ‘a high risk of being upset.’  The government charged that ‘further publication will jeopardize the military support we are receiving from foreign forces’ . . .” (Rudenstine 1892).  Finally, ISA head Dennis Doolin charged that the plight of POW’s might also be worsened by the Papers:  “as a result of the harm to the diplomatic process . . . ‘more of our men may die in North Vietnamese prisons.’ . . . Their confinement and their eventual release depended upon the diplomatic process, and that to the extent that disclosure harmed the diplomatic effort, the result would eventually be the loss of life for the United States prisoners of war” (Rudenstine 1897).  It was clear to Gurfein, however, that the chain of events necessary to cause the dangers anticipated by the government was long and improbable.

[52] In a later brief to the Court of Appeals for the Second Circuit, the Papers were said to “disclose plans for bombing North Vietnam, the capacity of the United States to assess enemy forces, the process for making United States military decisions and reaction times, current war planning for Southeast Asia and China, and ‘deployment times for major U.S. units’” (Rudenstine 1894).

[53] The brief quoted Justice Oliver Wendell Holmes Jr.’s famous statement from his opinion in Schenck v. United States, 249 U.S. 47, 52 (1918), that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre” (Arno 313).  Later on in the brief, the government again quoted Holmes’ Schenck opinion in stating that “When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right” (Arno 314).  The government also claimed that the Near exception allowed prior restraint of more categories of information than were actually listed in the opinion:   “It is hardly rational . . . to suppose that the meager listing given in Near [sailing dates of transports, etc.] . . . was intended to be an exhaustive catalogue. . . . Other compelling examples come readily to mind:  publishing the plans of weapons systems, the revelation of military codes, secret communications between allied governments, to mention but a few” (Arno 315).  However, of these three ominous-sounding possibilities the brief mentions, only the last was involved in the release of the Papers.  There was never a danger of weapons systems or U.S. codes being compromised; in fact, the Times was told directly by an officer of the National Security Administration, the government agency concerned with writing and breaking codes, that there was no “hazard to American codes” or to “American or ARVN [South Vietnamese] troops or their supplies” (Salisbury 318).

[54] See the Appendix for the full text of relevant sections of the Espionage Law.

[55] Using the Supreme Court’s opinion from Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201-2 (1967), which allowed injunctions when other remedies were “inadequate to ensure the full effectiveness of the statute” (Arno 311), the government stated that “it requires no unusual acuity to understand that the communication of such information can irreparably damage the national wellbeing, and that criminal sanctions imposed against the wrongdoer — no matter how severe — cannot repair that damage. . . . The courts’ exercise of their power to enjoin such conduct becomes essential to the effectuation of the Congressional policy” (Ibid).  Typically, a court could only enjoin when it had specifically been given power to do so under a statute; Wyandotte created an exception.  The Wyandotte standard was attacked by the Times using a later ruling (see note 62).

[56] The Times’ open brief emphasized this argument, saying that “the United States here seeks the remedy of a temporary injunction on the basis that it will assertedly suffer ‘irreparable harm’ to its ‘defense interests’ if the New York Times is not judicially forbidden to publish further articles such as those previously published. . . . [Beyond] general allegations . . . the United States has not made the slightest effort to prove that defense interests of the nation would in fact be harmed by publication of the series. . . . The Times has not published sailing dates of troop transports, not published secret plans of future military maneuvers, not published data relating to weapons systems or the like” (Arno 333-4).  The Times also submitted a secret brief that was not declassified until many years later.  In 1991, however, Cahill, Gordon stated that it did not have the brief; the government believed its copy had been lost and could not find it (Rudenstine 1891, note 139).

[57] Max Frankel submitted an affidavit to Gurfein which stated that the traffic in secrets was commonplace in Washington:  “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” (Arno 398).  Frankel mentioned several of his own experiences and those of others at the Times:  “I remember during my first month in Washington, in 1961, how President Kennedy tried to demonstrate his ‘toughness’ toward the Communists after they built the Berlin wall by having relayed to me some direct quotations of his best arguments to Foreign Minister Gromyko.  We were permitted to quote from this conversation and did so.  Nevertheless, the record of the conversation was then, and remains today, a ‘secret’” (Arno 399-400).  The memoirs of ex-government officials were one of the most frequently mentioned sources of secret material:  Johnson’s former press secretary, George Christian, wrote in his memoir “70 pages . . . on the decisions to end the bombing of North Vietnam . . . with many direct quotations of the President and other officials, many unflattering references to our allies in South Vietnam and a great deal of secret information, all still highly classified, about the secret negotiations with North Vietnam in Paris.  This book, [The President Steps Down, printed in 1970], actually covers a period much more recent than that discussed in the Pentagon [P]apers and at a much higher level of government and secrecy” (Arno 406-7).

[58] The doctrine of “vagueness” is applied to laws that are so worded that one cannot reasonably know whether certain conduct is or is not illegal.  Since secrets were revealed every day without legal action and since the statute invoked did not mention publication (as did others on related topics), there was no reason for the Times to expect that its conduct was illegal.  For example, the very day it carried an article on Gurfein’s issuance of the temporary injunction, the Times also printed an article detailing a policy review of the Vietnam War, complete with the dates and numbers of expected troop reductions, all based on leaks of classified information; yet the Justice Department was making no effort to prosecute the Times under the Espionage Law.  In fact, the brief maintained that government itself subscribed to the interpretation of the phrase “communicates, delivers, [or] transmits” as flatly excluding publication:  “At no time until the Government’s motion was filed in this Court on June 15 has the Government used this section to move criminally or civilly against a publication . . . of any materials or information in a newspaper or magazine or book or any other medium addressed internally within the United States to the American public.  This has been the unbroken administrative practice, which we submit is conclusive against the attempted application of section 793 in this case”  (Arno 356).  Because the statute was applied “without prior notice of the conduct that is suddenly made subject to the law, and in the sense of running counter to justifiably held expectations, and imposing a legal sanction by surprise, it is . . . a law that did not exist at the time the supposed offense was committed.  In the circumstances, the law the government now seeks to apply to the New York Times was written for the first time in the government’s complaint” (Ibid).

[59] The Times was joined in this argument by several “defendant-intervenors,” parties who were not involved in the litigation but wanted to appear before the court as amicus curiae (“friends of the court”).  The ACLU sent lawyers and briefs discussing at some length the public’s right to know the information in the Pentagon Papers.  Several Congressmen argued that the Papers were invaluable for conducting policy and should therefore be made available to Congress:  while the Times was under restraint, the Senate had defeated by a narrow margin the McGovern-Hatfield amendment to end appropriations for the war in Vietnam; it was suggested that had the Papers been released earlier, the vote might have gone the other way.

[60] The Times said in its brief that prior restraint required a higher burden than subsequent punishment:  “Whatever the Government may do in the way of punishing a publisher . . . it cannot stifle that utterance prior to publication except in the most narrowly defined circumstances” (Arno 341).

[61] The Times mentioned frequently that since its enactment the Espionage Law had never been used for any purpose other than prosecuting spies.  According to the Times, the law’s use of the phrase “relating to the national defense” was overly vague when concerned with publications:  “The merest glance at the Federal Register . . . will show some 18 inches of text relating to the national defense” (Arno 352).  When the Supreme Court had interpreted this phrase in Gorin v. United States, 312 U.S. 19 (1941), it had required “intent or reason to believe . . . that the information to be obtained is to be used to the injury of the United States” (Arno 353) [emphasis added]; the defendants, said the Times, must have “acted in bad faith” (Ibid).  The law existed to punish spies who obtained defense information, not to prevent newspapers from publishing classified materials.  Attached to the brief was an affidavit from publisher Sulzberger in which he declared that the Times had no “reason to believe” a danger was present, as the Papers were merely part of the historical record.  He quoted the following from an editorial printed in the Times on June 16:  “Obviously, the Times would not have made this decision if there had been any reason to believe that publication would have endangered the life of a single American soldier or in any way threatened the security of our country or the peace of the world.  The documents . . . refer to the development of American interest and participation in Indochina from the post-World War II period up to mid-1968, which is now almost three years ago.  Their publication could not conceivably damage American security interests, much less the lives of Americans or Indochinese” (Arno 394).  Since the Times had never believed that its action would divulge secrets of military value, the element of “scienter” — the knowing and intentional violation of the law — had not been present and the “reason to believe” phrase had not been fulfilled.  The “mere fact of classification” the government had cited was not enough to warrant punishing the Times:  “Whether any given document relates to the national defense of the United States is a question of fact for you to decide,” the Times told Gurfein, quoting jury instructions from United States v. Drummond, 354 F.2d 132 (1965); “It is not a question of how they are marked” (Arno 362).

[62] The brief stated that even if publication of the Papers were judged to be illegal under the Espionage Law, the government could not read into the law an ability to impose prior restraint.  In United States v. Jalas, 409 F.2d 358 (7th Cir. 1969), the Seventh Circuit Appeals Court had ruled that the federal courts “have no power to enjoin the commission of a crime” (Arno 364).  In the Pentagon case, the government was seeking an injunction based on the fact that the Times’ conduct was illegal.  However, if a court could enjoin a defendant from committing a crime, should the defendant do so anyway he would be punished by the judge for contempt of court; he would not have to be indicted by a grand jury or found guilty in a jury trial, as guaranteed by the Fifth and Sixth Amendments.  The Times argued that the Jalas doctrine was superior to that of Wyandotte (see note 55), which would have allowed the injunction of a crime.

[63] Latin for “in the room,” meaning that the hearings would be conducted in secret and the transcript sealed.

[64] The government’s lawyers frequently complained about the boundaries placed on them by security procedures.  “Room 401 in the U.S. Courthouse on Foley Square became an armed camp,” wrote Seymour, “as Defense Department guards were stationed at the entrance to challenge all who approached” (U.S. Attorney 199).  The government even refused to tell its own lawyers the facts with which to prove a national security danger:  “During the preparation of the witnesses to testify . . . the prospective witnesses were asked to identify the specific documents contained in the study which would jeopardize national security.  The reply from the Defense Department counsel, J. Fred Buzhardt, was classic.  ‘They cannot tell you,’ he said.  ‘The information is classified.’  Impossible as it may be to believe, the Defense and State Department representatives simply would not explain to the government lawyers which of the documents in the forty-seven volumes of the Pentagon Papers presented specific risks to national security, although they were absolutely positive that such documents existed” (Ibid).  Seymour, however, was himself affected by the air of security:  at one point, he asked that the court seal an index containing “numbers refer[ring] to specific volumes in the classified material which will be handed up to your Honor.  It is in fact an index, and without the other documents, obviously it does not present a problem.  With the other documents, it does” (Arno 505).

[65] The government’s lawyers were shocked:  their superiors in Washington had not told them about the Post’s story before the hearing began:  “I must admit that I have not seen these articles until this moment when the Professor handed them to me” (Arno 461), Hess told the court.

[66] Ellsberg contacted each of the three television networks and offered them the Papers; all three turned him down for fear of harassment by the FCC.  Ellsberg also gave the Papers to antiwar Republican Congressman Pete McCloskey and Alaska Senator Mike Gravel (see note 87) while the case was in the courts.

[67] “We were going out of our minds,” (312) wrote Post executive editor Ben Bradlee.  Before it obtained the Papers, the Post was running (with some embarrassment) summaries of the previous day’s Times articles:  “We were crying on each other’s shoulder” (Ungar 131) said Post reporter Chalmers Roberts.

[68] Bagdikian had also once been Ellsberg’s colleague at the Rand Corporation.

[69] To meet its deadline, the Post had approximately twelve hours to complete the task which had taken the New York Times several months.  Like the Times, the Post was reluctant to work on the story at its offices; instead, “for the next twelve hours,” wrote Post executive editor Ben Bradlee, “the Bradlee library on N Street served as a remote newsroom, where editors and reporters started sorting, reading, and annotating 4,400 pages, and the Bradlee living room served as a legal office, where lawyers and newspaper executives started the most basic discussions about the duty and right of a newspaper to publish, and the government’s right to prevent that publication, on national security grounds, or on any grounds at all . . . I went from one room to the other, getting a sense of the story in one place and a sense of the mood of the lawyers in the other” (313).  A split between the news and corporate staff similar to that which occurred at the Times was seen at the Post:  those who worked on the stories felt obligated to publish, while many of the lawyers were concerned with injunction or prosecution.  William Glendon, a partner at the Post’s law firm of Rogers & Wells, represented the Post in court.  He remembered his first involvement in the case as follows:  “On Wednesday, June 16, I received a call from my partner, Roger Clark, in our Washington office,  He briefly invoked the Deity and followed it with the statement, ‘The Post has the Pentagon Papers, too.’  The Post . . . was determined to catch up with its archrival, [t]he New York Times, and publish them also.  As lawyers, we were unenthused about the legality of their doing so” (24).  Complicating matters, recalled Bradlee, was the Post’s upcoming public stock offering; the company was liable for damages to the underwriters if a “catastrophe” occurred beforehand.  “No one wanted to say whether an injunction, or possible subsequent prosecution, qualified as a catastrophe” (314).  However, the lawyers went along when Post publisher Katharine Graham gave her approval to the project.

[70] The opinion of the legal staff “was mixed,” remembers Goodale, “because we didn’t like someone stealing the story; on the other hand, everyone who published made our case a little easier, practically speaking.”  Rosenthal appeared to be more upset; he later commented that “I was jumping up and down in here like a madman” (Ungar 148) when he learned of the story in the Post.

[71] This statement became more and more true as the case progressed:  Ellsberg, in hiding from the FBI, gave sections of the Papers to the Boston Globe, the Los Angeles Times, the Chicago Sun-Times (which embarrassed its much more prestigious competitor, the Chicago Tribune), the Knight chain of newspapers in Detroit, Miami, Tallahassee, Akron (Ohio), Boca Raton (Florida), Philadelphia, Charlotte (North Carolina), and Macon (Georgia), and the St. Louis Post-Dispatch before the Supreme Court made its final ruling.  One Appeals Court Judge compared the difficulty of keeping the Papers secret to “riding herd on a swarm of bees” (Ungar 203).  Of all the newspapers that printed, only the Times, the Post, the Globe, and the Post-Dispatch were taken to court; Ungar hypothesizes that the others may have been left alone because they had favored Richard Nixon in his 1968 campaign.

[72] Mardian’s influence was resented by the lawyers who spoke against the Times in New York.  He believed that there was no need to show a specific national security danger:  all classified documents, in his opinion, were forbidden territory.  Since the Post was subject to jurisdiction in both New York and Washington, it would have been possible merely to add them as a co-defendant to the Times case; according to Seymour, however, Mardian was upset at the U.S. Attorney’s independence and used the Post case as an opportunity to solidify his personal control:  “When the Washington Post took up publication of the study . . . Mardian started a separate injunction action in Washington using his own staff, where he could be free to present his hard-line position.  The result was predictable.  While we won [the Times case in the Appeals Court] in New York, Mardian’s staff lost the Washington Post case in the court of appeals in the District of Columbia” (U.S. Attorney 203) [Emphasis in original].  Mardian thought that the government should claim the New York Times had copyrighted its property by running stories based on stolen documents; if they were stolen, the doctrine of “replevin” stated that the Times should give them back.  However, notes Salisbury, “The courts have never established that the government has a property right [to internal documents].  ‘The use of replevin,’ Seymour later commented, ‘was preposterous under the law.  That’s the kind of thing you do if someone has your cow and you want it back.  There wasn’t any grounds for using it in this kind of case’” (299).

[73] The witnesses discussing classification were Dennis J. Doolin, Deputy Assistant Secretary of Defense for International Security Affairs, and George MacClain, Director of the Security Classification Management Division of the Department of Defense.  The other witnesses in open court were Vice Admiral Francis J. Blouin, Deputy Chief of Naval Operations for Plans and Policy, and William B. Macomber, Deputy Undersecretary of State.  During the in camera session, Buzhardt testified instead of MacClain.

[74] Doolin was pressed extensively to name specific documents in the Papers that would endanger national security; he refused to do so, mentioning only “one particular area that frankly is so sensitive that I can’t mention it even within this room and I could only mention it on a personal basis” (Salisbury 304) — the judge, however, was not as eager to deprive the Times of its constitutional right to hear the testimony against it.  Doolin also conceded that the Papers contained no documents detailing Sweden’s diplomatic involvement and that the Thais’ role had already been documented.  Admiral Blouin’s testimony did not help matters.  He commented on the danger of other countries’ knowing how the upper levels of the U.S. government operated; when Judge Gurfein mentioned that several histories of the Cuban Missile Crisis had already been written detailing Kennedy’s decision-making and his communications with other government officials, Blouin lamely replied that “I can tell you even though I am not in uniform today[,] I don’t like operating in a fishbowl but that is what we do today” (Salisbury 305).  Hess remembered that “When I heard the admiral make that remark about the fishbowl . . . I felt that Blouin blew it” (Ibid).  Macomber claimed that “we have irreparably damaged the chance of free government to endure” (Salisbury 306) by jeopardizing the security of diplomatic communications; the judge, however, mentioned that a number of the incidents which the government claimed would embarrass other nations had already appeared in memoirs of retired officials — both McNamara and Clark Clifford, his successor, had been provided copies of the Papers for their personal files.  (Buzhardt claimed that former Secretaries of Defense were often consulted on policy matters.)  Gurfein also did not believe Blouin’s argument that codes would be compromised — the judge had worked in the Office of Strategic Services (the predecessor of the CIA) during World War II, and he well understood the procedures for changing coding systems.    “No one listening to the convoluted explanations of the government witnesses,” Salisbury stated, “could remain under the illusion that they were making a case” (308).

[75] “It is true, of course,” Gurfein wrote,” that any breach of security will cause the jitters in security agencies. . . [But] no cogent reasons were advanced as to why these documents . . . would vitally affect the security of the Nation.  In light of such a finding the inquiry must end” (Arno 665-6).

[76] Gurfein went on to add that “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.  This has been the genius of our institutions throughout our history. . . . It is one of the marked traits of our national life that distinguish us from other nations under different forms of government”  (Arno 668).

[77] Kaufman, who eventually voted with the minority for lifting the injunction, issued his temporary stay because he believed that the matter deserved a hearing from the full Court of Appeals; he would not “by my sole action permit this case to become moot before other members of this court have had an opportunity . . . to consider the issues raised” (Arno 676).

[78] At the appellate hearing, the government relied more heavily on specific documents from the Papers; after Gurfein’s decision, says Seymour, the government officials “were dumbstruck” (U.S. Attorney 200).  They had lived “in the never-never land where their word was law.  The idea that someone else might not accept their word about a national security problem [emphasis in original] was unthinkable. . . . [T]hey were suddenly ready to help the lawyers with specifics.  Admiral Blouin provided the U.S. Attorney’s office with a detailed affidavit specifying the documents that presented current security risks” (Ibid).  The government stated that the papers submitted to the Appeals Court in its Special Appendix were merely clarifications of earlier arguments; however, they were actually new affidavits and claims of danger.  Because of the government’s statement, the defense was never allowed to see those affidavits and documents; had the Times seen them, it might have successfully refuted some of the allegations.   One such claim was made by NSA official Vice Admiral Noel Gayler, who argued that the Papers detailed a peace effort by Johnson known as Operation Marigold, executed through Polish and Italian diplomats.  Had the Times been aware of this affidavit, it could have responded quite easily; in the Post case, Bradlee was able to find that “The following week’s edition of Life magazine — not yet public — featured a signed article by Britain’s prime minister, Harold Wilson.  It was headlined ‘Operation Marigold’” (Bradlee 320).  It was ironic that those who had actually spent the most time analyzing the affidavits in the Special Appendix — four Court of Appeals law clerks — had agreed unanimously that the Appeals Court should not remand the case and should let Gurfein’s opinion stand (Ungar 203).

[79] The Post, in its separate litigation, was in a similar situation:  District Judge Gerhard A. Gesell had originally denied the government’s motion for a temporary injunction, but at 1:20 a.m. on June 19 a three-judge panel of the D.C. Court of Appeals voted to remand the case for a more complete hearing.  (The panel let the Post complete publication of that day’s paper, as many copies had already hit the streets.)  Judge Skelly Wright dissented from the two-man majority, proclaiming a “sad day for America” because “the Executive . . . has succeeded in stopping the presses. . . . As if the long and sordid war in Southeast Asia had not already done enough harm to our people, it now is used to cut out the heart of our free institutions and system of government” (Arno 685).

[80] Four judges of the court were inclined to overrule Gurfein and restrain the Times; three more were in favor of upholding his ruling.  Judge Walter Mansfield (whose promotion to the Appeals Court caused Gurfein to take the case) hammered out a compromise by which the decision would neither be overruled nor upheld, merely remanded.

[81] Gesell had ruled for the Post after his hearing on Monday; the government appealed that decision to the full D.C. Court of Appeals on Tuesday the 22nd.  Attorney General Mitchell at 10:30 had asked Erwin N. Griswold, the Solicitor General, to argue the case before the Court of Appeals at 2:00; Griswold, however, knew nothing of the case or the arguments:  “All I know is what I have seen in the newspapers,” he pleaded (“Pentagon Papers Case” 115).  Mitchell insisted, Griswold recalls, and “so between eleven and two I made notes for an argument.  I called my wife and she brought me some black shoes in place of the brown ones that I was wearing and a less noisy tie . . . I argued the case for something over an hour, of course, violating every instruction that had ever been given to any law student . . . I argued the case without ever having seen the record, without ever having seen a brief on either side, and without really having much of an idea of what it was all about.  It was a good experience because I found that I could get away with it, not that I could win the case, but that I could complete the argument and not have to sit down in utter confusion” (Ibid).  At the hearing, the government presented a sealed affidavit enclosed in three sealed manila envelopes, one inside the others, all three within a double-locked briefcase; the affidavit explained how certain cable intercepts in the Papers showed that the U.S. had broken the North Vietnamese codes.  Amazingly, Post reporter George Wilson  “stunned everyone by pulling out of his back pocket a verbatim record of the intercept, in an unclassified transcript of Senate Foreign Relations Committee hearings” (Bradlee 320).  The government’s case had collapsed, and the court voted resoundingly to lift the injunction.

[82] The vote on granting certiorari was five to four: Justices Black, Brennan, Douglas and Marshall had voted against hearing the case, stating that they would have preferred to lift the ban without a hearing.  Justice Douglas had phoned in his vote from Goose Prairie, Washington, where he was on vacation.  (By the 24th of June, the Court’s regular term had ended, and only a formal announcement of the end of the term was left on its schedule; unable to foresee the crisis, Douglas had taken his vacation early.)

[83] Eighteen years later, however, Griswold admitted that he had in fact seen no danger from even those eleven: in an editorial in the Washington Post, Griswold stated that “I have never seen any trace of a threat to the national security from the publication.  Indeed, I have never seen it even suggested that there was such an actual threat” (“Secrets” A25).  Legally, however, Griswold’s focus on eleven sections of the Papers was much more reasonable than the government’s earlier tactics; to quell public outcry, the Defense Department had announced that it was implementing a 45-day declassification review of the Pentagon Papers to determine if any of the material did not need to remain classified.  This act made it difficult to claim that everything in the Papers posed a danger of irreparable injury to national security.  Still, Griswold was forced to consult his superior, Attorney General Mitchell, who reluctantly allowed him to dispose of Mardian’s argument that classification prevented the publication of any document from the 47 volumes.

[84] Griswold encountered stern resistance on First Amendment grounds from several of the more liberal Justices.  Marshall was one of the most persistent; when he asked if the government’s request would turn the Federal judiciary into “a censorship board,” the following dialogue ensued:

            Griswold:  That is a pejorative way to put it, Mr. Justice.  I do not know what the alternative is.

            Marshall:  The First Amendment might be.  (Arno 1231)

Later, questioned by Douglas on the First Amendment’s phrase “Congress shall make no law” (Constitution 22), Griswold argued that “You say that ‘no law’ means ‘no law,’ and that should be obvious.  I can only say, Mr. Justice, that ‘no law’ does not mean ‘no law,’ and I would seek to persuade the Court that that is true” (Ibid).

[85] On this issue Bickel was questioned by several of the moderate and conservative members of the Court.  At one point he was faced with a difficult hypothetical by Justice Potter Stewart:  “Let us assume that when the members of this Court go back and open up this sealed record we find something there that absolutely convinces us that its disclosure would result in the sentencing to death of 100 young men whose only offense had been that they were 19 years old and had low draft numbers.  What should we do?”  After trying to explain that this was not the case, Bickel admitted that “my inclinations to humanity overcome the somewhat more abstract devotion to the First Amendment in a case of that sort” (Arno 1226), an answer that did not please the First Amendment absolutists on the Court.  The absolute position had been advanced by the ACLU, which had throughout the litigation argued that the public’s right to know the contents of the Papers outweighed even the most serious claims of danger:  “Even if the Government could prove particularized categories of information [posed a danger] — for example, future plans for the landing at the Bay of Pigs or the invasion of Laos or Cambodia — that information would nevertheless be . . . absolutely protected against prior restraint.  Such information involves questions of public policy — whether to enter a new war or a wider war — that must be subject to the debate and will of the people” (Arno 1182n).  Concerning the Bay of Pigs example,  the Times had learned of the invasion beforehand but had buried the story deep in the paper out of deference to national security.  Kennedy later contacted the editors of the Times and told them that had they printed more, the invasion might have been called off and a disaster avoided (Ungar 99).

[86] Glendon, who pulled fewer punches than Bickel or Griswold, bluntly told the court that “the fact, the possibility, the conjecture or the hypothesis that diplomatic negotiations would be made more difficult or embarrassed does not justify . . . suspending the First Amendment” (Arno 1227-8).  He reiterated his belief that the government had not met its burden in response to questioning by Justice White:  “[T]he Government came into court.  They suspended the First Amendment; they stopped us from printing; and they said they were going to prove this.  This is an injunction proceeding.  Now it may be that the Government would see that the courts should become the Defense Department’s security officer, and that the courts should delve into this pile of paper, 47 volumes, on its own, from time to time[, w]henever the government is so moved, that the courts should work for them.  I say, Your Honor, in our system . . . when you bring a case, you are supposed to prove it, and when you come in claiming irreparable injury, particularly in this area of the First Amendment, you have a very, very heavy burden” (Arno 1230).

[87] During the deliberation process, a strange drama had played out on the floor of the U.S. Senate.  Freshman Senator Mike Gravel (D-Alaska) had planned a filibuster against the extension of the draft; he would begin in the evening of June 29th and end in the early morning of June 30, after the deadline for Congress’ draft extension had passed.  He had been provided the Papers by Daniel Ellsberg to read during the filibuster, but was denied the floor of the Senate by a “parliamentary maneuver” (Gravel 237).  Turning to Plan B, Gravel used his position as Chairman of the Senate Subcommittee on Buildings and Grounds to convene a hearing; he “walked into the room carrying a briefcase full of documents.  I opened the hearing by saying we need more federal buildings, but can’t afford to build them.  The reason we can’t afford them is that we are wasting our money.  And then I asked Congressman Dowd [who had been called as a “witness” to the hearing] if I could impose upon his patience to read some documents which would show how we have been wasting that money in the war in Southeast Asia” (Ibid).  For the next several hours, Gravel read out loud from the Papers to a spellbound press and ordered the rest of the study inserted into the Congressional Record.  (Gravel did not fear legal action by the government, as the Constitution protects Congressmen from any questioning regarding official speeches or debate.)  Condemned by Republicans for having exposed secrets in a sham hearing, Gravel managed to prevent the Justice Department from prosecuting his staff members, who had handled the Papers.  He also arranged for a printing of a near-complete set of the Papers by the Beacon Press, a set which is to this day referred to as the Gravel Edition.

[88] This was a very unusual step, as the Court usually issued one opinion expressing the feelings of the majority and another for the dissenters.  However, there was not enough time for the Justices to create drafts on which they could agree, as the views of the majority differed widely; for this reason, each Justice merely explained the reasons for his own decision.  “The simplest thing to do in getting it out in a hurry is each [J]ustice states what is on his mind” (Ungar 242), said Chief Justice Burger.  Justice Douglas finished first and was back in Goose Prairie, Washington by the time the opinions were delivered.

[89] From the opinion in Bantam Books, Inc. v. Sullivan, 372 U.S. 58,70 (1963).

[90] Chief Justice Burger, the leader of the dissenters, resented the judicial fast-track that the case had taken and deplored its effect on the litigation:  “We do not know the facts of the case.  No District Judge knew all the facts.  No Court of Appeals judge knew all the facts.  No member of this Court knows all the facts. . . . I suggest we are in this posture because these cases have been conducted in unseemly haste” (Arno 1275).  A frequent critic of the press, Burger castigated the Times for spending three months without printing the Papers while they were in its possession and then insisting on urgency once the litigation started:  “It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it had its expert analysts studying them, presumably digesting them and preparing the material for publication.  During all of this time, the Times, presumably in its capacity as trustee of the public’s ‘right to know,’ has held up publication for purposes it considered proper and thus public knowledge was delayed” (Arno 1276).  Burger was joined in dissent by Harlan and Blackmun.

[91] Justice Hugo Black, in his last opinion on the Court, wrote that “every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment” (Arno 1237).  A free press “was to serve the governed, not the governors.  The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government . . . Only a free and unrestrained press can effectively expose deception in government.  And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell” (Arno 1239-40).  Black was joined by Justice Douglas, who discussed the inapplicability of 18 U.S.C. §793, and by Marshall, who based his decision mostly on the separation of powers.

[92] The opinions of Brennan, White, and Stewart lay somewhere in between the two opposing camps.  Brennan belittled the government’s claim that general allegations of harm justified prior restraint:  “The error which has pervaded these cases from the outset was the granting of any injunctive relief whatsoever . . . The entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined ‘could,’ or ‘might,’ or ‘may’ prejudice the national interest in various ways.  But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result” (Arno 1249).  White, on the other hand, was the most conservative of the three, writing that “I do not say that in no circumstances would the First Amendment permit an injunction . . . Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests.  Indeed, I am confident that their disclosure will have that result” (Arno 1256).  However, said White, there was not enough evidence to justify prior restraint, though he would certainly accept criminal prosecution of the Times.  Stewart remained the man in the middle, saying that “I am convinced that the Executive is correct with respect to some of the documents involved.  But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people.  That being so, there can under the First Amendment be but one judicial resolution of the issues before us” (Arno 1254).

[93] Grand juries in Boston and Los Angeles were convened to indict Daniel Ellsberg, and the Justice Department had briefly considered a criminal trial of Neil Sheehan in New York.  Whitney North Seymour remembers his refusal to go after the Times:  “Mardian proceeded to lay plans to prosecute those who were responsible for the publication of the Pentagon Papers. . . . He telephoned Michael Hess in New York . . . Hess turned him down flat.  A few days later, Deputy Attorney General Richard Kleindienst came to New York to pay an official visit to our office. . . . ‘We’re thinking of starting a grand jury investigation in New York to find out who at the New York Times was responsible for receiving the stolen documents from Ellsberg, so we can prosecute them,’ he said.  I turned to him and said simply, ‘Not in this District’” (U.S Attorney 204).  In the Ellsberg trial, the government destroyed its own case:  while a Los Angeles jury deliberated, the trial judge threw out the case on the basis that the government had illegally broken into Ellsberg’s psychiatrist’s office looking for papers discrediting the researcher.  The break-in was conducted by the special “Plumbers” unit, whose future political operations would gain fame and destroy the Nixon presidency in the Watergate scandal.

[94] With the disclosure of the Papers, the “credibility gap” opened by the war yawned wider; as it would a year later in Watergate, the press exposed what the government had done behind closed doors.  As the New York Times editorialized, “This was the premise, this the context, and this the fateful error.  If, as the principal officers of the Government saw the country being drawn into such a war, a full and frank debate and discussion in Congress and outside had been undertaken, it is quite possible that events could have moved in a different way.  No one will ever know, for this ‘open covenant, openly arrived at,’ between American Government and American people never materialized. . . . This, then, is what the Vietnam Papers prove — not venality, not evil motivation, but rather an arrogant disregard for the Congress, for the public and for the inherent obligation of the responsibilities of leadership in a democratic society” (“Vietnam Papers” 647).

[95] On September 13, 1995, U.S. District Judge John Feikens ordered BusinessWeek magazine not to publish a story based on sealed court documents in a suit between Procter & Gamble and Bankers Trust Company.  Bankers Trust was accused of fraudulently selling financial policies to Procter & Gamble while concealing the losses those accounts had taken.  On September 1, P&G added to an existing lawsuit new charges that Bankers Trust had violated the federal RICO (Racketeer-Influenced and Corrupt Organizations) statute; its main source of evidence was a collection of 6,500 taped conversations among Bankers Trust employees.  The filing, the briefs accompanying it and the evidence tapes were sealed by the court.  BusinessWeek obtained the documents (called the Bankers Trust Tapes) from a Bankers Trust lawyer who was unaware they were sealed.  When the judge learned that BusinessWeek intended to print the story, he issued an injunction on September 13 without giving the magazine advance warning (in violation of the Federal Rules of Civil Procedure).  Feikens decided that the Supreme Court’s ruling in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) prohibited a party to the litigation from disclosing information that it had agreed to keep sealed in the courtroom.  (BusinessWeek, however, was completely uninvolved with the litigation between P&G and Bankers Trust and so argued that the case did not apply.)  BusinessWeek applied for expedited appeal in the U.S. Court of Appeals for the Sixth Circuit and made an emergency appeal to Justice John Paul Stevens; both courts denied the appeal on procedural grounds, saying that BusinessWeek should have complained to Feikens before seeking appellate review.  On October 3, the judge amended his order to allow P&G’s RICO filing; this made the briefs quoting the documents public.  However, says BusinessWeek, he “made permanent his injunction against the magazine’s use of the original set of documents” (Hammonds 116).  No dangers to troopships or U.S. codes were behind this prior restraint, merely the desire of Judge Feikens that the magazine not “snub its nose at court orders” (900 F.Supp. 186).

[96] Goodale cites the Bankers Trust case especially as an example of the “double-edged sword”:  the “symbolic value” of the Pentagon case, he says, “will influence the impact . . . of a case like Bankers Trust; but it’s also true that since there was an injunction granted in the Pentagon Papers case, the granting of that injunction seems to have given encouragement to judges such as [Feikens] in the Bankers Trust case to do what they had never done before, which was to enjoin the press.”  When Supreme Court Justice John Paul Stevens, who reviewed the case, questioned the methods BusinessWeek had used to obtain the documents — “The manner in which petitioner came into possession of the information it seeks to publish may have a bearing on its right to do so” (116 S. Ct. 6) — the magazine invoked the legacy of the Pentagon case:  “the Pentagon Papers, after all, were stolen” (“Further” 158).  Floyd Abrams spoke out against the injunction as “absolutely at odds with 100 years of American law” (Hammonds 116).  On March 5, 1996, the U.S. Court of Appeals for the 6th Circuit agreed, issuing a stinging rebuke of District Judge Feikens and reaffirming the principles of the Pentagon decision as a central tenet of American constitutional law.  “[H]ad the District Court . . . engaged in the proper constitutional inquiry, the injunction would never have been issued.  Far from falling into that ‘single, extremely narrow class of cases’ where publication would be so dangerous to fundamental government interests as to justify a prior restraint (New York Times Co. v. United States, 403 U.S. 713 [the Pentagon case]), the documents in question are standard litigation filings that have now been widely publicized . . . The permanent injunction, therefore, was patently invalid and should never have been entered.”  Associate Judge Boyce F. Martin added in a concurring opinion that “In entering the permanent injunction, I do not believe the district court even came close to justifying its action in light of Justice Stewart's statement that a prior restraint upon publication is improper absent proof that publication ‘will surely result in direct, immediate, and irreparable damage to our Nation or its people.’”

[97] From Judge Gurfein’s opinion in the Pentagon case (see note 76).