Ratio Juris: The “Pentagon Papers”

On this date in 1971, Daniel Ellsberg and his colleague, Anthony J. ‘Tony’ Russo Jr., were indicted by a federal grand jury for releasing the “Pentagon Papers” to the news media. The papers were part of a 7,000-page, top secret history of the U.S. political and military involvement in the Vietnam War from 1945-71.

[The Pentagon Papers] energized the press and endowed it with a new confidence and sense of legitimacy, given its clear triumph over governmental secrecy. Claiming almost a co-equal status with governmental institutions, the media managed to identify themselves collectively as the people’s paladin against the impersonal, devious forces of government. [….] Thus, the Pentagon Papers incident intensified the adversarial relationship between the Administration and the media, a relationship that was to deteriorate still more sharply. These developments, together with a failure of the courts to provide the desired protection and relief demanded by the Administration, led directly to one of the most fateful decisions of the Nixon presidency: the creation of the Plumbers. – Stanley I. Kutler, The Wars of Watergate: The Last Crisis of Richard Nixon (Alfred A. Knopf, 1990)

Nixon administration officials initially regarded the documents as embarrassing only to previous administrations. President Richard Nixon himself thought that the ‘opposition’ had an in interest in forgetting the papers, but ‘ours is to play it up.’ But with National Security Adviser Henry Kissinger, Nixon also realized that publication imperiled his own policies, his patterns of secrecy, and his credibility. Most important, Nixon feared that future presidents would lose control over classified documents and thus potentially embarrass their predecessors. From Stanley I. Kutler’s entry on New York Times Co. v. United States in Kermit L. Hall, ed. The Oxford Companion to the Supreme Court of the United States (Oxford University Press, 1992): 588.

In the past, I had instinctively accepted the ethos of my profession, the idea that leaking was inherently bad, treacherous, or at best an unhelpful thing to do. I had been wrong. Obviously, leaking could be a patriotic and constructive act. – Daniel Ellsberg

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“New York Times Co. v. United States, 403 U.S. 713 (1971), was a landmark decision by the United States Supreme Court on the First Amendment [Concurrences: Black, Douglas, Brennan, Stewart, White, Marshall. Dissents: Burger, Harlan, Blackmun]. The ruling made it possible for The New York Times and The Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment.” – Wikipedia

Case Summary:
“In June 1971 the New York Times and the Washington Post began to publish excerpts from a classified Defense Department study, officially titled ‘History of U.S. Decision-Making Process on Viet Nam Policy’ but popularly known as the Pentagon Papers [This seven thousand page document had been commissioned by President Lyndon Johnson’s secretary of defense, Robert McNamara. ‘It revealed that secrecy had been the handmaiden of deception.’] The newspapers obtained the documents from a former Defense Department official, Daniel Ellsberg. A day after publication began, Attorney General John N. Mitchell ordered government lawyers to take the newspapers to court to restrain [publication of] further articles, claiming grave national harm. By undermining peace negotiations, the government asserted, publication of the excerpts would prolong the war and risk the death of many soldiers [the government also argued that publication would endanger the release of prisoners of war]. Federal district courts decided against the government, but two U.S. courts of appeals issued temporary restraining orders against further publication pending appeal. The Supreme Court agreed to hear the cases less than two week after the first article appeared, heard arguments the next day, and decided against the government four days after that. In a 6-3 per curiam decision [Latin for ‘by the court;’ an opinion from an appellate court that does not identify any specific judge who may have written the opinion.] in New York Times Co. v. United States, the Court held that the government had not met its ‘heavy burden of showing justification for the enforcement of a ‘prior restraint’^[1] against the press.

Each of the justices wrote separate concurring or dissenting opinions. Justice Hugo L. Black said that ‘every moment’s continuance of the injunctions’ amounted to ‘a flagrant, indefensible, and continuing violation of the First Amendment.’ Justice William O. Douglas agreed, adding that no law prohibited the papers from publishing the articles and that the government has not implied or inherent power to obtain injunctions against the press. Justice William J. Brennan, also concurring, said that the only exceptions to the rule against prior restraint occur when the disclosure would immediately imperil the security of troops engaged in or about to be engaged in battle. Justice Potter Stewart said that the responsibility for maintaining secrecy ‘must be where the power is;’ the president, not the courts, must keep classified information secret. If it leaks out, the courts may not stop the presses. Justice Byron R. White agreed with Brennan and Douglas that no law authorized injunction and that the government had not met its burden, and he added that the government had gone down the wrong route. Instead of seeking injunctions, it should have sought indictments against those who leaked the information. Justice Thurgood Marshall espied a ‘separation of powers’^[2] problem ‘for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit.’

Dissenting, Justice John Marshall Harlan, pointing to the ‘almost irresponsibly feverish’ attitude of the Court in deciding the cases so hurriedly, said that the president is entitled to much greater leeway in seeking to block matters with foreign affairs. The Court may independently review whether the material against which an injunction is sought deals with foreign affairs and whether the secretary of defense had personally assessed the risks; if so, the courts should refrain from redetermining ‘the probable impact of disclosure on the national security.’ Also dissenting, Justice Harry Blackmun wanted the Court to remand the cases to the lower courts to develop standards through a ‘balancing’ that would say when the press could be enjoined, because the ‘First Amendment, after all, is only one part of an entire Constitution.’ Chief Justice Warren E. Burger dissented solely because ‘we literally do not know what we are acting on;’ he contended that the Court should have extended the temporary restraining orders until the lower courts could conduct a full trial on the merits.” – From Jethro K. Lieberman, A Practical Companion to the Constitution (University of California Press, 1999): 344-45.
Notes

Please see §11.2.3 Prior Restraints, especially pp. 918-929, in Erwin Chemerinsky, Constitutional Law: Principles and Policies (Aspen Law & Business, 2^nd ed., 2002). As Chemerinsky writes, “the Court has said [in Bantam Books, Inc., v. Sullivan, 372, 327 U.S. 58, 70 (1963) and Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) respectively; the latter decision was a little more than a month before New York Times Co. v. United States] that ‘[a]ny system of prior restraint of comes to this Court bearing a heavy presumption against its constitutional validity’ and the government ‘thus carries a heavy burden of showing justification for the imposition of such a restraint.’”
Please see IV, “The Distribution of National Powers,” in Geoffrey R. Stone, et al., Constitutional Law (Aspen Law & Business, 4^th ed., 2001): 331-419.

See too: From Professor Douglas O. Linder’s Famous Trials website, his page on The Pentagon Papers, which includes, among other things, a link to a copy of the original indictment of Ellsberg and Russo, a page on the trial, and Judge Matthew Byrne’s ruling dismissing the case on May 11, 1973.

Further Reading

Ellsberg, Daniel. Papers on the War. New York: Simon and Schuster, 1972.
Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. New York: Viking Penguin, 2002.
Herring, George C., ed. The Secret Diplomacy of the Vietnam War: The Negotiating Volumes of the Pentagon Papers. Austin, TX: University of Texas Press, 1983.
Hersh, Seymour. The Price of Power: Kissinger in the Nixon White House. New York: Summit Books, 1983.
Kutler, Stanley I. The Wars of Watergate: The Last Crisis of Richard Nixon. New York: Alfred A. Knopf, 1990.
The Pentagon Papers: The Defense Department History of United States Decision Making on Vietnam. 4 Vols. Boston, MA: Beacon Press. “Senator Gravel Edition” (includes documents not included in government version), 1971.
Prados, John and Margaret Pratt Porter, eds. Inside the Pentagon Papers. Lawrence, KS: University Press of Kansas, 2004.
Rudenstine, David. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley, CA: University of California Press, 1996.
Ungar, Sanford J. The Papers and the Papers: An Account of the Legal and Political Battle over the Pentagon Papers. New York: Columbia University Press, 1989.