The Pentagon Papers Trial

“And let me say, I think it is time in this country to quit making heroes out of those who steal secrets and publish them in the newspapers.”

—President Richard M. Nixon, during remarks at a State Department reception for returned prisoners of war, May 24, 1973

This audience would, unlike a growing percentage of the American people, be inclined to believe almost anything he said, and so President Nixon chose the assemblage of POW’s as the forum for an impassioned defense of secrecy as a keystone of national security. “It isn’t that we are trying to keep anything from the American people that the American people should know. It isn’t that we are trying to keep something from the press that the press should print,” said the man whose Administration has taken the boldest steps in decades against the free flow of information. It is just that he demands for an elite of government officials the sole authority to decide what information the public “should” have; and that information, in his view, did not properly include the Pentagon Papers.

Mr. Nixon pointed out almost wistfully that the Soviets “have no problem keeping their secrets”; and without a passing nod to the First Amendment or other constitutional safeguards, he concluded that “it is time for a new sense of responsibility in this country and a new sense of dedication of everybody in the bureaucracy that if a document is classified, keep it classified.”

Through his address to the POW’s, billed as a plea for their “support in helping to develop the national spirit,” the President was trying to appeal to the people a case he had just lost in court in Los Angeles. When U.S. District Court Judge W. Matt Byrne, Jr., dismissed all charges in the Pentagon Papers trial because of extreme governmental misconduct, the executive branch suffered an unequivocal and embarrassing defeat on the issue of secrecy; the Administration failed, after a two-year effort, to obtain a declaration from a federal court or jury that the time-honored practice of leaking information from government files is a crime.

Strange case

Daniel Ellsberg was, of course, a hero to no one before the Justice Department began pursuing him after newspaper publication of the Pentagon Papers in June, 1971. He was a bright, intense, somewhat messianic man who had never held a policy-making position of his own, but had been a researcher and adviser on some of the most grisly aspects of the disastrous American involvement in Southeast Asia. He had removed documents from the files of the Rand Corporation and, with the help of a friend, Anthony J. Russo, Jr., photocopied them, later going to the press in desperation after being unable to convince any member of Congress to violate courtesy and security regulations by making them public.

The press, which became weary of him early in the game, did not make a hero of Ellsberg; nor did Democratic politicians, who sought to avoid him like the plague, nor the public, which has largely refused to endorse his much misunderstood act of defiance. If Ellsberg is a hero today, as implied by the President, it is thanks to the Nixon Administration, which tried to make new and wide-ranging law by making an example of him and his co-defendant. Little wonder that there should arise substantial sympathy for a criminal defendant once it has been learned: that the Federal Bureau of Investigation has poked into his affairs for almost four years; that he was the victim of government “national security” wiretapping not authorized by any court but ordered into place by Attorney General John N. Mitchell, who is himself now charged with perjury, conspiracy, and obstruction of justice; that a squad of burglars, reporting directly to the White House, broke into the office of his former psychiatrist, looking for information bearing upon his “prosecutability,” and then drew upon the Central Intelligence Agency to construct “psychological profiles” of him; that one of those burglars not only photocopied secret cables but also doctored and forged them, without ever being charged with an offense; that the President’s chief domestic adviser offered the directorship of the FBI to the judge presiding over his trial, in an apparent effort to affect the outcome of the case.

From the start, the case against Ellsberg and Russo moved forward under mysterious, sometimes suspicious, circumstances. When Ellsberg was indicted in June, 1971, the charges were filed while the Supreme Court was still weighing its decision on civil suits to stop the New York Times and the Washington Post from publishing the Pentagon Papers—a bit of timing that many legal observers interpreted as an unsubtle attempt to influence the justices. Russo, who in reality played a minor role in the photocopying of the documents, was apparently added to the indictment as punishment for his refusal to testify in secret before a federal grand jury in Los Angeles. (Russo served a seven-week jail term for contempt, but was released when he persuaded a progressive federal judge, Warren J. Ferguson, to rule that he need not testify unless provided with a full public transcript of his testimony—an order the government chose not to follow.)

Robert L. Meyer, then the Nixonappointed United States Attorney for the Central District of California, refused to sign the superseding indictment against Ellsberg and Russo when it was handed down in December, 1971, an act of conscience that quickly cost him his job. (Defense attorneys pressed Judge Byrne, himself a former U.S. Attorney, to hold a hearing on the subject, but he declined, and Meyer died without ever publicly explaining his decision.)

The concentration of government resources on the case went far Beyond what was done in other politically significant cases, such as the “Chicago Seven” riot conspiracy trial and the Harrisburg, Pennsylvania, trial of the Reverend Philip Berrigan and other Catholic antiwar militants. With an Army brigadier general assigned full-time to assist the prosecutors and with the State Department flying the U.S. Ambassador in South Korea from Seoul to Los Angeles for perfunctory testimony as a rebuttal witness, there could be little doubt that the desire for a conviction came from the top.

Two days before his tough speech to the prisoners of war, President Nixon explained in a lengthy statement on the Watergate affair and related matters that disclosure of the Pentagon Papers had been interpreted by his Administration as an alarming event. “Not until a few hours before publication did any responsible Government official know that they had been stolen,” the President said. “Most officials did not know they existed. No senior official of the Government had read them or knew with certainty what they contained. . . . There was every reason to believe this was a security leak of unprecedented proportions. It created a situation in which the ability of the Government to carry on foreign relations even in the best of circumstances could have been severely compromised. Other governments no longer knew whether they could deal with the United States in confidence.” The 1971 leak, he claimed, “posed a threat so grave as to require extraordinary actions.”

Panicking and plumbing

The factual record would seem to indicate that Mr. Nixon was exaggerating. Although the Pentagon Papers had been little read, their existence and their compilation at the behest of former Defense Secretary Robert S. McNamara were well known in top Nixon Administration circles. Henry A. Kissinger, White House national security adviser, had been a consultant to the task force that wrote the study and was later often urged by Ellsberg to read the final version. Nixon’s first Defense Secretary, Melvin R. Laird, became familiar enough with the documents before publication to deny access on several occasions to Senator J. William Fulbright, chairman of the Senate Foreign Relations Committee. The FBI and other government security agents were quickly able to identify the published documents, and the FBI already had a thick dossier on Ellsberg at the time of publication. No military operations were affected by the disclosure, no foreign contacts ruptured; indeed, within weeks the secret Nixon-Kissinger approach to China would be complete and uncompromised.

But it is clear, in retrospect, that publication of the Pentagon Papers played into the hands of those within the Administration who had a mania about “national security” concerns and had already launched multiple investigations of the Black Panther Party and groups of antiwar dissidents. The panic may have been precipitated, in part, by the information that after the first court restraining order against the New York Times, a copy of the Papers was passed to the Soviet Embassy in Washington by an unidentified person with no apparent connection to Ellsberg. (Despite this information, the Justice Department pressed the newspaper cases to the Supreme Court, arguing that the documents must be kept from foreign nations.) At the same time, the events became a pretext for new and aggressive security measures. Within a week, Mr. Nixon created a Special Investigations Unit in the White House, later known as the “plumbers,” “whose principal purpose,” in the President’s words, “was to stop security leaks and to investigate other sensitive security matters.” The President ordered White House aide Egil Krogh, Jr., to have the unit “find out all it could about Mr. Ellsberg’s associates and his motives,” and this order led directly to the burglary at the psychiatrist’s office and other illegal acts.

Zealots within the Justice Department won the opportunity to try stretching some old statutes for new uses. Ellsberg and Russo were charged, for example, with conspiring to “defraud” the United States of “its lawful governmental function of controlling the dissemination of classified government studies, reports, memoranda and communications.” Until this time, nearly all violations of the government’s security classification system had been treated as administrative infractions, which could lead to suspension from a federal job, rather than crimes, since the classification system is embodied in presidential executive orders, not in congressional statutes. They were also accused of espionage, which involved an almost laughable twisting of that term’s traditional meaning. The easiest charge for the government to prove, but also the one that might set the most dangerous precedent, was theft of government property. Implicit in that approach was the notion that despite the absence of an Official Secrets Act or a government copyright in the United States, information can be treated as government property and can be “stolen” when revealed to the public or even to Congress. Conviction on this charge could have provided a future legal basis for bringing federal criminal cases against newsmen for “receiving” and “communicating” information that an Administration wanted to keep secret.

Internal dynamics

Anthony Russo is a man with a well-defined ideology who has an eager eye for “war criminals.” He got in trouble with Judge Byrne at the outset of the trial by approaching one of the earliest prosecution witnesses, Lieutenant General William DePuy, assistant to the Army Vice Chief of Staff, and handing him a statement which said, in effect, that their places should be reversed in the courtroom, with DePuy on trial and Russo a witness against him. Wearing a Viet Cong pin in his lapel, Russo worried that the defense case would give former government officials who had planned and executed American policy in Vietnam an all-too-eonvenient way to change sides and atone for their sins. When one of the defense’s own witnesses, a maverick research analyst for the Central Intelligence Agency, was asked under cross-examination to chart the four components of the Vietnamese Communist forces, Russo risked a contempt-of-court citation by writing in a fifth component, “the people,” during a recess. He hoped to the end that the trial could accomplish a degree of “political education,” teaching the jurors and the courtroom audience, if no one else, about the perfidy of U.S. involvement in Southeast Asia.

Daniel Ellsberg seemed far more ambivalent about his role in the courtroom. He had a certain amount of trouble dissociating himself from his past and the national defense establishment milieu. On the one hand, he was flattered that so many former policy makers were willing to testify on his behalf (“We had to turn some away,” he said); but on the other hand, he continued to agonize over whether he might ever re-establish his relationship with the “former friends” who were now on the opposite side of the Pentagon Papers issue. Ellsberg became furious with the press and frequently complained that reporters regularly covering the trial were paying too little attention to him, too seldom seeking out his point of view on the day’s developments. For him the case, indeed the entire Pentagon Papers affair, was an intensely personal experience that he was not about to surrender, nor even to share with Russo. Toward the end, he developed an elaborate conspiracy theory that the break-in at the Watergate was part of a plot by the Committee for the Re-Election of the President to tie the eventual Democratic presidential candidate to Daniel Ellsberg.

For a grand courtroom clash on lofty issues, the trial had more than its share of tedium, especially when the ever-angry chief prosecutor. David R. Nissen, set out to punish the judge or the defense lawyers for an adverse ruling by, for example, forcing a witness on cross-examination to read aloud fifteen or twenty pages from a book he had written. During the long, slow days, Russo wrote doggerel verse, read and reread a favorite book, or stared off into the distance from the defense table. Ellsberg looked always to be feverishly scribbling notes to himself; at one point, he announced proudly that he had calculated that he had more “command experience” in the Marines than did Brigadier General Paul F. Gorman, the prosecution consultant and witness, in the Army.

The case did provide a chance for the famous and once-powerful men of John F. Kennedy’s Administration to appear before an attentive audience (itself often including Hollywood figures drawn to what became one of the most chic events in Los Angeles). Some, like McGeorge Bundy, made powerful witnesses because of their command of the facts in the Pentagon Papers and their ability to withstand Nissen’s unrelenting assaults. But others used the occasion largely to assert their former closeness to the President and to recite the good advice they had once given him.

Those on Ellsberg’s side of the defense bitterly fought Russo’s proposal for a series of more “radical” witnesses, but he finally prevailed. When Boston University history professor Howard Zinn took the stand as the sixteenth defense witness, he was the first person to testify for Ellsberg and Russo who had nothing to do with making American policy in the Vietnam War. Zinn’s testimony introduced into evidence an issue that the defense had previously neglected or failed to get past the judge’s chaotic evidentiary rulings: how the country felt about the war in the late 1960s, when Ellsberg and Russo had acted.

“There is an element of the national defense that is very often overlooked,” Zinn said softly, “the morale of the people of a country . . . is the government representing them? Is it consulting them? Do people believe they are being told the truth? Is the government honoring or violating its principles?” By 1969, he observed, “the morale, the general state of health of this country was not too good ... on television, people saw our troops burning villages . . . the war in Vietnam was a war which involved special interests and not the national defense of the United States.” The courtroom was virtually silent during Zinn’s lecture, and jurors later said they had found it moving. His success won for Russo’s half of the defense the right to overdo its case much as Ellsberg’s half had already done.

The struggle between those two camps within the defense, presided over uneasily by chief counsel Leonard B. Boudin (who was generally on poor terms with his client, Ellsberg), was perhaps as significant as any other dynamic in the trial. It was epitomized in a letter from a young paralegal worker, Adam Bennion, to Charles R. Nesson, a Harvard Law School professor who was one of the defense attorneys. When Eastern newspapers broke the story that Judge Byrne had gone to San Clemente to consult with White House aide John D. Ehrlichman about the FBI directorship, Nesson. rather than waiting to take him by surprise, informed the judge privately by telephone, without consuiting his colleagues, that the defense would raise the issue in court. “By your action,” Bennion wrote Nesson, “you have demonstrated why politics must be in control of lawyers in political trials, and not vice versa. It is clear that, in reality, you feel a certain kind of class unity with Matt Byrne, else why would you feel that it is your responsibility to inform him of his fuck-up, a fuck-up for which he should have to bear full responsibility, without help from those who have a higher obligation: to serve the people as people’s lawyers.” What Nesson saw as proper legal etiquette, Bennion attacked as a “collaborationist position.”

Byrne’s career, which he had intended to take much further, was probably stained by the fact that he answered a second summons from Ehrlichman and failed to report either contact to the parties in the Pentagon Papers case before the newspaper publicity. Leonard I. Weinglass, Russo’s lawyer, pointed out that if anyone from the defense had offered the judge a nice job for after the trial while it was still going on. “we all would have been in jail.” But Byrne insisted that he had done nothing wrong and that his meetings had not improperly affected the trial.

“Cult”

One factor which inevitably united the defense was what one attorney called the “cult of secrecy” at the heart of the case. Byrne participated in its ritual by insisting, right through the end of the trial, that the duplicate copies of some Pentagon Papers volumes involved in the case, although long since public, remain under a “protective order” that required the defense to keep careful records on, and obtain receipts from, everyone who had access to the documents in connection with the preparation of the case.

It took months for William G. Florence, the retired Air Force officer who served as security consultant to the Ellsberg-Russo team, to convince even the defense lawyers that a “secret” stamp need not mean anything, that the presence of a classification marking on a document does not necessarily indicate that it really requires protection in the interests of “national defense.” The appropriate skepticism was slow in coming to those who had permitted themselves to assume that good faith and rationality are at the heart of the secrecy system which President Nixon is so eager to preserve. Florence’s unrelenting crusade had powerful assistance, however, from the State Department, which continued to insist that the four “diplomatic volumes” of the Pentagon Papers were still classified and required official protection, even though they were public court exhibits available to anyone on request in the office of the Clerk of the U.S. District Court in Los Angeles. In mid-trial, an assistant secretary of state wrote Senator Fulbright, who had been trying to obtain official clearance of a Foreign Relations Committee staff study based on the volumes, that their formal declassification would violate “our obligation to preserve the integrity of the diplomatic process and to protect the sanctity of confidential exchanges with other governments.” Eventually, the judge came around; he instructed the jury that they should not regard the classification stamps as conclusive.

No sooner had Judge Byrne dismissed the charges and scolded the executive branch for its “bizarre” conduct in the Pentagon Papers case than Ellsberg and Russo proclaimed that they had won a great “victory” and had been “vindicated” for their action in releasing the documents. Reform, Ellsberg insisted, was just around the corner, and the first necessary step was merely to impeach the President.

What Ellsberg and Russo can be excused for missing in their moment of jubilation over Byrne’s opinion— admittedly a strong and eloquent, if belated, one—is that there can be losers without winners, embarrassment and chastisement for one side without vindication for the other. For the Pentagon Papers trial accomplished little beyond giving Ellsberg and Russo a platform, radicalizing most of the jurors and their alternates, and providing a forum for some sensational Watergate-related disclosures. And it cost a great deal, financially (nearly a million dollars for the defense, perhaps twice as much in the value of diverted resources on the government side), legally, and in terms of the judicial system’s standing and credibility. One of its most important lessons is that prosecutorial discretion, unchecked by the courts, in this and other controversial cases, may be a serious threat to freedom of expression and of information.

While it is true that disclosure of the Pentagon Papers has been followed by a number of other significant leaks on a major scale—columnist Jack Anderson’s publication of documents revealing the American position in the Indo-Pakistani war and some of the revelations concerning Watergate, for example—the more important Ellsberg-Russo example may be a negative one: rebellious government employees or former employees, if they take an action which sufficiently angers the President or offends those promoting a security mania, may be tied up in court for two years even if there is no strong case against them.

The question that now must be asked is whether the Pentagon Papers trial served a purpose for anyone. And furthermore, whether no result was not the best result. A conviction of Ellsberg and Russo would almost certainly have set a dangerous precedent. But an acquittal, while encouraging new leaks, could also have caused a powerful backlash in the bureaucracy and the Congress, which has not demonstrated that it can be trusted to stand guard on the executive branch in behalf of the public. The result might have been more specific and potentially repressive legislation in the security area.

The public interest—that of government officials with a legitimate interest in keeping some genuinely sensitive information secret, and that of the press and the citizens— would probably have been best served if the charges had not been brought at all or if the case had never gone to trial. Constructive tension between government and the press has generally worked well for many decades and may be far more effective in guiding the relationship between the two than would be any set of specific ground rules arising out of a peculiar criminal case. Indeed, as matters stand, the press was effectively set back in 1971, when the government’s civil suits against the newspapers which published the Pentagon Papers, although ending in a transparent victory for the press, produced an ominous legacy: that the First Amendment can be put aside at least temporarily, while the executive branch has an opportunity in the courts to justify an attempt at prior restraint on free expression.

To be sure, the Ellsberg-Russo case underscored an urgent need for reform, but the actual prospects are dim. In 1972, Congress permitted the President to put into effect a new executive order that, while it reduced the number of people entitled to classify documents and required that the classification decision sometimes be justified in writing, doomed some information to perpetual secrecy and left terms like “national security” as ill-defined as ever. Only last spring, the House Government Information Subcommittee, chaired by Representative William S. Moorhead (Democrat of Pennsylvania), concluded after a two-year study that a realistic security classification system should be embodied in statutes, rather than in executive orders, and that Congress should help establish the standards instead of permitting the President to act alone.

But in the meantime, the White House has moved to tighten the executive grip on information policy, in part because its efforts were frustrated during the Pentagon Papers case. In its Criminal Code Reform Act of 1973, the Nixon Administration has proposed creating a criminal charge called “mishandling of national defense information” that could ostensibly be used against newsmen and their sources. The Administration proposal takes a giant step backward by, among other things, requiring that a classification stamp be respected, no matter how trivial or independent of a document’s actual contents. The defense that information had been improperly classified would be specifically banned. And the President has declared, to the cheers of the returned prisoners of war, that “I am going to meet my responsibility to protect the national security of the United States of America insofar as our secrets are concerned.”

In this day and age, that could mean anything.

—SANFORD J. UNGAR