Tuesday, June 13, 2017

June 13, 1971 - The New York Times begins publication of the Pentagon Papers, a secret U.S. study of the history of the war in Vietnam. The Nixon admistration immediately attempts to formally censor the press and prevent further publication. Seventeen days later, in one of the key First Amendment rulings in American history, the U.S. Supreme Court rules in New York Times v. United States (403 U.S. 713) that "prior restraint" of the press is unconstitutional.

It was the first Supreme Court test in the nation's history of the government's power to halt publication on "national security" grounds.

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Daniel Ellsberg enlisted in the U.S. Marine Corps in 1954. He won an officer's commission, served as a platoon leader and company commander in the 2nd Infantry Division, and was discharged in 1957 as a first lieutenant. A strong anti-communist, Ellsberg began working as a strategic analyst at the RAND Corporation, where he concentrated on nuclear strategy. In 1962, Ellsberg received his Ph.D. in economics from Harvard University. Returning to RAND, he was assigned to the Pentagon -- where he worked in the office of the Secretary of Defense. After two years, he was assigned to the staff of General Edward Lansdale in Vietnam.

In Vietnam in 1966, Ellsberg became incredibly disaffected by the war. He was shocked at the indiscriminate use of violence against civilian populations, the idiotic way the war was being fought, and the utter disregard the military had for information and statistics. Ellsberg's great friend was Lt. Col. John Paul Vann, the U.S. Army's best and most successful strategist and tactician in Vietnam. Despite Vann's assurances, Ellsberg became convinced the war was unwinnable.

In 1967, opposition to the Vietnam War was at a fever pitch and rising. President Lyndon Johnson asked Secretary of Defense Robert McNamara to compile a history of the war, so that the administration could use it to not only justify the decisions it had made but also to help future presidents and military leaders understand how the nation had become so embroiled in the conflict.

This study, completed in January 1969, became known as "the Pentagon Papers." Among its key findings: (1) The United States had not entered the war to defend South Vietnam but rather to contain Chinese expansion. (2) The Gulf of Tonkin Incident of 1964, after which Congress approved extensive U.S. military involvement, was mostly a fabrication. (3) The United States had been waging a secret war in Vietnam since 1954. (4) The United States had purposefully undermined the Geneva Accords (which created a North and South Vietnam, Laos, and Cambodia) to goad the Chinese. (5) The United States had covertly assisted in the overthrow and assassination of South Vietnamese president Ngo Din Diem. (6) As early as 1962, the United States had planned air raids on major Viet Cong bases in South Vietnam, cross-border raids into North Vietnam, and air strikes on North Vietnamese targets.

Ellsberg had helped compile a portion of the Pentagon Papers, and in the spring of 1969 was given full access to them. He was alarmed by the revelations in them. In October 1969, he and a friend (fellow RAND researcher Anthony Russo) began secretly photocopying the entire 20,000-page, 47-volume study. It was a laborious process. In those days, photocopiers made only about four pages a minute. Ellsberg and Russo would sneak a volume of the top-secret study out of the building, and spend all night copying it. They would return the book in the morning before anyone noticed it was gone.

Ellsberg initially offered the Pentagon Papers to Nixon's National Security Advisor Henry Kissinger, who expressed distinterest. He then offered them to Senator William Fulbright (D-Ark.) and Senator George McGovern (D-S.D.), but neither wanted to touch the explosive document. (None of these men reported Ellsberg to the FBI.)

Ellsberg was deeply frustrated by the refusal of key elected officials to expose the duplicity of the U.S. government. Giving up hope on politicians, in February 1971 Ellsberg told New York Times reporter Neil Sheehan about the study, and gave him 43 of the 47 volumes.

The New York Times began publishing excerpts from the study on Sunday, June 13, 1971. The Nixon administration was aghast. On June 14, U.S. Attorney General John N. Mitchell asked the Times in a telegram to stop publishing the excerpts. The newspaper declined.

On Tuesday, June 15, Murray I. Gurfein, judge on the U.S. District Court for the Southern District of New York, issued a temporary order restraining the New York Times from continuing to publish the material. On Wednesday, June 16, Gurfein heard oral arguments in the case. On Sunday, June 19, Gurfein dissolved his restraining order.

But Ellsberg had also given a copy of the Pentagon Papers to Ben Bagdikian at the Washington Post. On June 18, the Post began publishing its own excerpts. Nixon didn't bother with a request this time; the administration went before Judge Gerhard Gesell of the U.S. District Court for the District of Columbia to seek a restraining order. But Gesell was having none of it: During the evening on June 18, he refused to issue the injuction. The federal government appealed to the Court of Appeals for the District of Columbia Circuit, a special nationwide federal court created primarily to deal with government issues. On the afternoon of June 19, the D.C. Circuit ruled 2-to-1 in favor of the injunction.

Also on June 19, Judge Irving R. Kaufman of the U.S. Court of Appeals for the Second Circuit reinstated the temporary restraining order, pending a resolution by the full court. A three-judge panel heard oral arguments on June 20, but declined to rule -- instead, asking all eight judges of the court of appeals to sit in judgment on the case.

On June 22, all nine judges of the D.C. Circuit Court of Appeals overturned the ban on the Post. (But it retained the restraining order in order to give the government time to appeal to the Supreme Court.) The same day, the Boston Globe began publishing its version of the Pentagon Papers, and Judge Anthony Julian of the U.S. District Court for the District of Massachusetts issued a restraining order that afternoon.

On June 23, the 2nd Circuit Court of Appeals upheld the ban on the New York Times, 5-to-3.

On June 26, the U.S. Supreme Court heard oral arguments in the appeal from the 2nd Circuit.

On June 30, 1971, in New York Times v. Nixon -- perhaps one of the most important First Amendment cases in U.S. history -- the Supreme Court decided 6-to-3 that the government had failed to prove its claim that censorship of the press was justified by national security. The bans on publication were lifted.

Even had the Court ruled otherwise, it may not have mattered. On June 29, Senator Mike Gravel (D-Alaska) began reading the Pentagon Papers into the Congressional Record. Article I, Section 6 of the Constitution says that no member of Congress can be prosecuted for anything said on the floor of Congress or entered into the Congressional Record. The Nixon administration sued Gravel anyway, but the Supreme Court held in Gravel v. United States (June 29, 1972) that Gravel's right to read the papers on the floor of the Senate and in the Congressional Record was constitutionally protected.

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Ellsberg and Russo faced charges of theft and conspiracy under the Espionage Act of 1917. By this time, Ellsberg was being treated by psychiatrist Lewis Fielding for severe depression. The White House learned of this, and decided to break into Fielding's office and steal Ellsberg's medical records. On September 3, 1971, White House aides E. Howard Hunt and G. Gordon Liddy and former CIA officers Eugenio Martínez, Felipe de Diego, and Bernard Barker broke into Fielding's office. But Ellsberg's file contained no embarrassing information.

Ellsberg's trial opened on April 1. The case took a number of bizarre twists. First, on April 26, the federal prosecutor admitted that the government had withheld potentially imporant information from the defense. These four reports consisted of pre‐trial interviews with three witnesses -- each of whom had, by then, testified in the trial. Judge William Matthew Byrne, Jr. was furious, and ordered the prosecution to turn over everything it had on the case. Second, on April 27, the federal prosecutor admitted that for the past 12 days, he had known of the Fielding break-in. Third, on May 2, Judge Byrne revealed that he had personally met twice during the trial with White House aide John Ehrlichman, who had offered him directorship of the FBI. Byrne said he had refused to consider the offer while the Ellsberg case was pending. (Byrne was roundly criticized for even agreeing to meet with Ehrlichman.) Fourth, on May 10, Judge Byrne learned the FBI had secretly taped telephone conversations between Ellsberg and Morton Halperin, the RAND employee had supervised the Pentagon Papers study. The government claimed it had lost all relevant records of the wiretapping, but Watergate testimony by ex-FBI agents had disclosed the information.

Judge Byrne declared a mistrial on May 11, 1973.

After the robbery, Dr. Fielding took the filing cabinet home and saved it as evidence. His widow, Elizabeth Fielding, donated it to the Smithsonian in the 1990s.

Even though nearly all of the Pentagon Papers were published in one form or another by 1975, the federal government still claimed they were top-secret and classified. It only fully unclassified them in 2011.

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