'Pentagon Papers' case, 50 years on: Still a victory for a free press

'Pentagon Papers' case, 50 years on: Still a victory for a free press
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Fifty years ago today, the New York Times published the first of a series of articles based on the “Pentagon Papers” — leaked documents about the Vietnam War classified as “Top Secret.” President Nixon tried to stop publication, but he lost big time. This loss could be even said to have greased the skids for his eventual departure from the presidency.

The publication caught Nixon’s Justice Department with its pants down. At first it couldn’t figure out where copies of the Pentagon Papers came from, or even who had the copies. Then it couldn’t figure out what version of the Papers the Times had.

The reason for this was that President Johnson’s Defense secretary, Robert S. McNamara, had commissioned an historical study of our 1945-1967 relations with Vietnam without telling anyone else in the government he was doing it. He installed Leslie Gelb, a Harvard PhD and later president of the Council of Foreign Relations, as editor in chief. Gelb persuaded other PhDs, including Daniel Ellsberg, to write chapters in the 47-volume study.

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The so-called Papers showed that the U.S. had told colossal lies about our relations with Vietnam, starting with the Geneva Conventions from 1945 right up to Johnson’s bid for reelection in 1967. When the Times published on June 13, 1971, no one in the government paid much attention because Nixon and his peers were entranced by news coverage of the marriage of Nixon’s daughter Tricia the day before. Gradually, as it sunk in, the government realized that thousands and thousands of pages, classified “Top Secret,” were effectively in the public’s hands. No one even knew who had classified them or what they contained.

In fact, Gelb had classified them as an after-thought and admitted later that he had done so improperly. The government had to defend the improper classification. This meant dealing with material already published by the Times — nonetheless, stamped “Top Secret.” This included public speeches by Presidents Kennedy and Johnson.

As the litigation proceeded, Nixon’s Justice Department had to scroll through the 7,000 pages of the study to come up with items it claimed damaged national security. But every time it came up with such a claim, the Times (or the Washington Post, which published the material later) knocked down the claim — either because the material had been published previously or because the “Top Secret” classification was not justifiable.

A few examples will suffice: Nixon’s Justice Department claimed that two top-secret telegrams sent by Llewellyn Thompson, U.S. Ambassador to Russia, reflecting his opinion of the Russian leadership, could be enjoined because they revealed the Nixon administration’s view of such leadership. But it turned out that both telegrams had already been published in Lyndon Johnson’s memoirs.

Australia’s prime minister, Sir William McMahon, was furious because the Papers reported that Australia had secretly supported our war efforts in Vietnam; he had told his electorate otherwise. This was highly embarrassing for McMahon — but hardly damaged U.S. national security.

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The government also asserted that publication of classified articles would reveal to the world our superior code-breaking skills. In fact, Nixon said in his memoir that he brought the Pentagon Papers case because publication would “reveal” those skills. The public is largely unaware that Nixon tried to turn the case into a code-breaking case because the hearings on codes were all highly secret.

In its case against the Times, the government tried to assert that all classified documents in the case potentially contained decoded information only recognizable by a “trained eye.” It followed that all the Pentagon Papers had the potentiality of communicating decoded information which would tip off intelligence services that we had skillfully broken the Vietnamese code and could break theirs as well.

The government’s misfortune was that its judge in New York was Murray Gurfein, a WWII intelligence officer. He pooh-poohed such claims, noting that all of the information in the Papers was at least three years old and that governments change their codes all the time. Decoded information more than three years old was so old that it was totally irrelevant to a claim of code-breaking.

In the Washington Post case, the government filed a secret affidavit by the head of the National Security Agency, Adm. Noel Gayler, which said the Pentagon Papers disclosed the government had broken the North Vietnamese code. The Post proved Gayler’s information was not secret; it had been published already by the Senate Committee on Foreign Relations. The D.C. federal courts would not accept Gayler’s statement. Undaunted, the government submitted the statement anyway to the U.S. Supreme Court without telling the court the statement was false; nonetheless, the Supreme Court paid no attention to it.

Served badly by a Justice Department that could not shoot straight, Nixon was expected to lose his case — but not necessarily to lose big time, which he did.

Several lower court judges noted that perhaps all that Nixon had to prove was that publication of the Pentagon Papers constituted a clear and present danger to U.S. national security. As the general counsel for the Times in charge of the case, colleagues on my legal team advised me not to appeal to the Supreme Court because lower court opinions which adopted a test akin to a clear-and-present-danger test would sufficiently protect the Times.

I rejected their advice because I wanted the Supreme Court to adopt a grand, overarching test for the First Amendment so that the government could not censor the press by asking courts to stop publication even when publication includes classified material. This would not only protect the Times but also other publications in future cases. It was not enough that the government could show “clear and present danger,” it had to show much more.

The Supreme Court decided, 6-3, that publication of classified information or the like must “surely result in direct, immediate and irreparable damage to the Nation or its people.” That standard is virtually impossible to meet. It requires a showing of “immediate damage,” not merely “present danger.” It also requires “damage to a Nation,” not localized damage.

There was no such test before Nixon brought the Pentagon Papers case. There is now. And it gives the press far greater rights than what it had before Nixon brought the Pentagon Papers case. By bringing the case, he increased protection for the press under the First Amendment — a huge loss for him.

It also led to Nixon’s demise as president. He created the White House “plumbers unit” to break into the office of Daniel Ellsberg’s psychiatrist. When the break-in was disclosed to the judge overseeing Ellsberg’s case, Nixon lost that case, too. And we know that when the “plumbers” broke into the Watergate complex, Nixon subsequently lost the presidency.

It all began 50 years today, when Nixon decided to take on the Times.

James C. Goodale is the former general counsel and vice chairman of the New York Times and the author of “Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles."