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The Pentagon Papers Essay Introduction Publication of the Pentagon Papers by leading newspapers in June 1971 was an important incident in modern American history. The inside of the papers fueled the fires of antiwar movements at home and overseas; the release of the papers aggravated an extraordinary criminal prosecution of two American citizens; plus the reaction of the administration of President Richard M. Nixon to publication of the papers led eventually to the Watergate scandal as well as the first resignation of a president in American history. Frequently overlooked, though, is the fact that the trial of Daniel Ellsberg and Anthony Russo for photocopying the Pentagon Papers exposed the imperial and unruly side of the Nixon Administration, and this brought into sharp relief the quandary of government secrecy in a democratic polity. Never before had citizens been charged with a crime for disclosing apparently Top Secret information to the general public through the American press. Heretofore, with the exception of narrow fields of secrecy legislatively sanctioned by the Congress for instance certain atomic energy information, the keeping of secrets had been implicit to be an executive prerogative however not a statutorily vested authority. Once the cat was out of the bag, the press was free to make use of information. Nevertheless, the leaking of classified information had been, and still is, a very common practice. The principal restraint on the press was the capability of the president to influence the press not to publish information. Not like Britains prime minister and most other heads of state, who can protect secrets under an Official Secrets Act, the president possesses no statutory authority to obstruct press publication of classified information. Before the trial of Ellsberg and Russo, also, it was not usually alleged that the president could legally prosecute citizens for leaking classified information to the American press. Certainly, the threat pretense by such authority to informed debate in a democracy and to disclosures of governmental malfeasance made such executive authority almost improbable. In passing the Espionage Act of 1917, for instance, the Congress denied President Woodrow Wilsons requests for broad authority to control war information. Members of Congress intentionally restricted the scope of the law in order that it could not be used as an instrument for presidential censorship of the press. Over the years, the Congress has constantly refused to permit the executive branch to draw a statutory veil of secrecy around itself. The Nixon Administrations prosecution of Ellsberg and Russo, consequently, was a daring effort by an imperial executive branch to secure from the judicial branch a broad measure of power and authority long denied it by the legislative branch. However, the Congress sat by although the administration ingeniously fashioned extraordinary criminal charges out of novel interpretations of existing statutes covering conspiracy, theft, and intelligence. While the administration failed in its attempt to imprison Ellsberg and Russo, the unwillingness of the court to nullify the prosecution at the outset basically changed the regulations of executive secrecy in the United States by converting what had been a political game of hide-and-seek between presidents and the press into a potentially criminal game of cat-and-mouse. Therefore, the long-standing importance of the Pentagon Papersand the basic clash between secrecy and democracylay not so much in the unauthorized publication of the documents, however in the abuse of the Rule of Law by the administrationan abuse that has had the effect of hanging a judicial sword of Damocles above the heads of citizens who would reveal classified information to the public. Principal Events On Sunday, June 13, 1971, The New York Times started to publish excerpts from a U.S. Defense Department study marked Top Secret and entitled History of U.S. Decision-Making Processes on Vietnam Policy, widely recognized as the Pentagon Papers. The collection of documents had been assembled during Lyndon B. Johnsons administration at the request of then-Secretary of Defense Robert S. McNamara at first; President Nixon was not particularly disturbed by the publication of the papers. Their contents, after all, managed policy-making before his administration and were, consequently, probable to be embarrassing to the Democrats just before an election year. Though, the presidents national security adviser, Henry Kissinger, succeeded on the president to do something regarding this huge hemorrhage of state secrets. (Peter Schrag, 1974) On the evening of June 14, after two days of publication and after various White House consultations, Attorney General John Mitchell asked The New York Times to cease publishing excerpts from the Pentagon Papers. Mitchell stated that publication of the documents dishonored the Espionage Act. The Times refused to act in accordance with, saying, It is in the interest of the people of this country to be informed of the material contained in this series of articles. The U.S. Department of Justice got a temporary preventive order against The Times. The newspaper pleads to the U.S. Supreme Court on June 24. (David Rudenstine, 1996) At the same time as The Times was restrained from publishing excerpts from the Pentagon Papers, The Washington Post started to publish portions of the study. The Post distributed extracts to some 345 client publications through the Washington Post Los Angeles Times News Service. The Department of Justice got a temporary restraining order against The Post, and after that appealed to the U.S. Supreme Court when the U.S. Court of Appeals for the District of Columbia ruled that The Post had a constitutional right to issue the material. Extracts from the Pentagon Papers were as well published by The Boston Globe, The Los Angeles Times, The St. Louis Post-Dispatch, The Christian Science Monitor, plus a number of further newspapers during June 22-29. The Department of Justice got a restraining order against The St. Louis Post-Dispatch on June 26. (Sanford Ungar, 1972) On that day, the U.S. Supreme Court heard public oral arguments from Solicitor General Erwin Griswold for the United States, Alexander Bickel for The Times, as well as William Glendon for The Post. In a swift and extraordinary thrive of activity, the Court rendered a 6-3 decision on June 30, and issued a short per curiam opinion for the Court, with justices Warren Burger, John Harlan, and Harry Blackmun rebellious. The decision was accompanied by nine opinions. The per curiam opinion held that the United States had not conquer the heavy constitutional presumption against prior restraint on the press. Justices Hugo Black and William Douglas took a virtually absolute view of a First Amendment prohibition of prior restraint on newspapers. Justices William Brennan, Thurgood Marshall, Potter Stewart, and Byron White recognized that there could be circumstances that would validate a prior restraint on press publication of national security information, however that such conditions were not present in this case. Chief Justice Burger objected to the unseemly haste with which the Court handled the cases. Justices Harlan and Blackmun as well objected to the frenzied train of events [that] took place in the name of the presumption against restraints created by the First Amendment. The dissenting justices thought that publication of the Pentagon Papers must have been delayed until an assessment could have been made of the papers potential consequence on national defense and security. (Peter Schrag, 1974) The New York Times and The Washington Post hailed the ruling as a conquest for freedom of the press, and resumed publication of excerpts of the Pentagon Papers on July 1. Even though the Nixon Administration had succeeded in temporarily imposing the first U.S. government prior restraint on newspapers in American history, an event that outdone even the Sedition Act of 1798, the effort to control leaks by judicially restraining the press did not stick. In the view of the administration, something else had to be done to defend executive prerogatives over the dissemination of information. The setback at the Supreme Court did not discourage the Nixon Administration from following criminal charges against Daniel Ellsberg. The White House had recognized Ellsberg as the person accountable for the Pentagon Papers leak almost instantly after publication of the documents. (Peter Schrag, 1974) Ellsberg was first accused on June 25, 1971. He surrendered to U.S. authorities in Boston on June 28. Not completely content with the strength of its case, though, the administration continued to look for incriminating proof, both legally and illegally, and to look at its prosecutorial options. Throughout the Labor Day holiday, members of the White House Plumbers unit burglarized the office of Ellsbergs psychiatrist in an effort to get information that may be used to damage Ellsbergs trustworthiness and cast doubt on his motives. (Daniel Ellsberg, 2002) On June 19, the FBI questioned Anthony J. Russo regarding his role in the release of the Pentagon Papers. Russo refused to answer FBI questions. On June 23, he was subpoenaed to give evidence before a federal grand jury in Los Angeles. In spite of a grant of immunity, Russo declined to testify unless his testimony could be made public. On August 16, he started serving a 47 day jail term for contempt of court. On October 1, U.S. District Court Judge Warren J. Ferguson released Russo from prison and ordered the government to offer Russo with a record of any testimony he might be needed to give to the grand jury. Assistant U.S. Attorney David R. Nissen held the order to be unlawful and refused to obey it. Russo once more declined to testify before the grand jury. On December 29, 1971, the grand jury issued a new, secret indictment in the Pentagon Papers case; one that added new charges aligned with Ellsberg and as well included criminal charges against Russo. (John Prados and Margaret Pratt Porter (eds.), 2004) The defendants were charged with 15 counts of criminal conduct, together with conspiracy, espionage, as well as conversion of government property (theft) for photocopying in 1969 substantial portions of the Pentagon Papers. In contradiction of a common belief, Ellsberg and Russo were not accused for giving the Pentagon Papers to any newspapers or for making the documents public by any means. They were accused for temporarily removing the Pentagon Papers from the premises of the RAND Corporation in Santa Monica, California, plus for photocopying the documents at an advertising agency owned by Russos friend, Lynda Sinay. Listed as unindicted coconspirators were Lynda Sinay and Vu Van Thai, a former South Vietnamese ambassador to the United States. Thai had clearly been present at one of the photocopying sessions. The charges against Ellsberg carried utmost penalties of 115 years imprisonment plus $120,000 in fines. Those against Russo carried maximum penalties of 35 years imprisonment and $40,000 in fines. Throughout the trial, though, U.S. District Court Judge William Matthew Byrne, Jr., directed an acquittal on one espionage count each against Ellsberg and Russo. (Daniel Ellsberg, 2002) There are numerous reasons for thinking that the trial of Ellsberg and Russo-popularly recognized as the Pentagon Papers Trialwas a case of selective prosecution undertaken for political reasons. For one, Ellsberg and Russo were the first citizens in American history to be criminally prosecuted for activities related with a leak of classified information to the public. Second, the leaking of classified information by public officials from the president to low-level subordinates had been, as it carries on to be, a common practice. Political warfare may not be the suitable term in this case; however even so, political warfare is a common motivation for leaking secrets, whether it is by presidents, national security advisers, or persons outside an administration. In addition, a full compilation of available documents was soon published by Beacon Press with the assistance of Senator Mike Gravel. (David Rudenstine, 1996) Third, no members of the press, who in fact published the documents, were accused by the government. Certainly, the condemnation of Ellsberg and Russo steered obvious of any probable collision with the press by limiting the supposed criminal behavior to the period of March 1969 to September 1970, a time period that ended more than nine months before the publication of the Pentagon Papers. Fourth, no effort was made to impeach other private citizens formerly associated with the Lyndon Johnson Administration who possessed copies of the Pentagon Papers, or portions thereof, and who debatably drew on those documents, directly or indirectly, for books, articles, and speeches. The accessible records of White House discussions of how to proceed against Ellsberg propose that the decision to prosecute was a political approach intended to make an instance of him. The administration wished to stem what it viewed as a rising tide of sensitive leaks by indirectly intimidating others who might consider disclosing information to the press. The main problem facing the administration was one of finding a statutory foundation for prosecution. To do so, the U.S. Department of Justice had to bring to bear on the case considerable creativity. All charges involved novel interpretations of standing statutes. The Pentagon Papers Trial started in Los Angeles on July 10, 1972, with selection of the jury. On July 24, Judge Byrne exposed that the government had filed a wiretap transcript of a conversation by a member of the defense staff, however ruled that the contents need not be disclosed for the reason that they did not bear on the case. The defense appealed the ruling to the U.S. Supreme Court. The trial was stayed until November 13, when the Supreme Court upheld the judges ruling. Instantly afterward, the trial was again stayed when the defense appealed for and got dismissal of the jury. Selection of a new jury started on January 8, 1973. (John Prados and Margaret Pratt Porter (eds.), 2004) On May 11, 1973, though, near the close of testimony, Judge Byrne dismissed all charges against Ellsberg and Russo, and affirmed a mistrial due to improper government conduct which affronted a sense of justice. Among other things, the White House Plumbers had burglarized the office of Ellsbergs psychiatrist in 1971; FBI wiretap transcripts of telephone conversations by Ellsberg in 1969-1970 had disappeared; on numerous occasions the government had failed to make a timely disclosure of exculpatory evidence; and presidential assistant John Ehrlichman had flown to Los Angeles in April to offer Judge Byrne the directorship of the FBI. A poll of the jurors after the mistrial indicated that most would likely have voted for acquittal if they had had the opportunity to decide the case. Conclusion The Pentagon Papers trial was a political trial in the classic sense. It was as well a prosecutorial attempt that conformed to the Nixon Administrations often extraordinary constitutional asserts to power and its offhand disregard for the Rule of Law. The decision to prosecute was a high-level one made by the president, plus the charges brought against Ellsberg and Russo symbolized a creative political construction of statutes intended to make a noncrime into a crime. The proof is in the pudding, so to speak. The concern of the Nixon Administration with leaks was so great that, besides the Pentagon Papers trial, it required to attain the same ends in its proposals to the Congress to reform the federal criminal code. All the legal issues rose in the Pentagon Papers trial and the creative constructions of statutes used to prosecute Ellsberg and Russo were contained in the administrations criminal code reform proposals. Those proposals, if passed, would have provided a firm base in criminal law for prosecuting persons for disclosing classified information to the public, and would have banned defendants from raising such questions as ownership of information and the propriety of any government classification of documents. Improper classification would have been no defense against criminal charges. The Congress rejected the presidents proposals, Nixon resigned from office, the imperial presidency came to an end, and the Vietnam War as well came to an shameful end two years later, however the issues raised in the Pentagon Papers trial have continued to haunt public life, affecting every administration since Nixon. For the reason that Judge Byrne elected to defer rulings on the substantive legal and constitutional issues until the end of the trial, the mistrial left all the issues judicially unresolved. Therefore, the possibility of prosecution continues to stand as a probable threat to citizens who disclose classified information to the general public, though any decision to prosecute, and the foundation for doing so in cases similar to the Pentagon Papers case, carries on to remain in the realm of politics rather than statutory law. The state of the law, as it now stands, neither permits nor prohibits a president from prosecuting persons who leak classified information to the American press. A key question for Americans, then, is whether the issues raised by the Pentagon Papers trial can be resolved legislatively or judicially. Even though it is usually recognized, as John Jay argued in The Federalist nearly 200 years ago, that executive secrecy is sometimes essential for the conduct of effective foreign policies, it is hard to reconcile in any precise way the practice of secrecy with the openness required for democratic policy-making. Legislative and judicial solutions would necessarily be flawed, and conceivably dangerous to democracy, since one cannot say in advance and thoroughly what sorts of information must be kept secret. Even authentically sensitive national security secrets might occasionally have to be exposed so as to root out malfeasance or otherwise protect the public good. Given that officials already err on the side of secrecy when they can get away with it, any further encouragement via legislation or judicial support may intensify the problem. The capability of presidents and their agents to protect secrets that are genuinely fundamental to the security of a democratic nation can easily be expanded to protect secrets that are very important merely to the power and interests of public officeholders. Therefore unless there is to be no secrecy, reconciliation of the need for secrecy with the prerequisites of democracy requires, in the final analysis, public-spirited officials who are capable and keen to exercise sound judgment footed on honest assessments of the national interest as determined by democratic processes. Such was not the case in 1971. References: Daniel Ellsberg. Secrets: A Memoir of Vietnam and the Pentagon Papers; Viking Adult (October 10, 2002) David Rudenstine, The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley and Los Angeles: University of California Press. 1996 John Prados and Margaret Pratt Porter (eds.). INSIDE THE PENTAGON PAPERS, Lawrence: University Press of Kansas, 2004. Peter Schrag. Test of Loyalty: Daniel Ellsberg and The Rituals of Secret Government. New York: Simon and Schuster. 1974. Sanford Ungar, The Papers and the Papers (New York: Dutton, 1972).