Fifty years ago this month, the political conflict over the U.S. war in Vietnam blew up into a first-order constitutional crisis involving the definitions of press freedom, national security and the public’s right to know. The cause: the leaked, “top secret” report on U.S. policymaking in Vietnam known as the Pentagon Papers.
The 1971 Supreme Court ruling on the issue has shaped the landscape for reporting on government secrets. It also reminded the American people of something essential for our democracy to function, then and now: Voters have the ultimate power to tell the government what to do and not do in their name. To accomplish that, though, they first have to know what their government is up to.
It all began in 1967, at the height of the U.S. military intervention in Vietnam. Defense Secretary Robert McNamara could see that the United States was not winning, and he wanted to know why. So, he ordered an internal review of what had gone wrong.
One of the analysts who would produce an answer for McNamara was Daniel Ellsberg, an ex-Marine who had served in Vietnam, come home to get a Ph.D. and worked at the Rand Corp. He had a high-level security clearance and a keen mind. Originally a supporter of the U.S. war effort, Ellsberg was undergoing a conversion into an opponent of the war.
Then, he faced the question of what to do about it. As a contributor to the study ordered by McNamara, he had access to a set of the final Pentagon report. He wanted the public to see what he had found: that Vietnam was a disaster, one into which president after president had led us deeper and deeper, always claiming that victory or “peace with honor” was just around the corner while knowing better.
With the idea of divulging its contents, Ellsberg began secretly photocopying the study in October 1969. Aside from the legal issues, copying the Pentagon Papers was a physical challenge. Each set ran to 47 volumes, about 7,000 pages of documents and analysis classified as “TOP SECRET — SENSITIVE.”
As Ellsberg well knew, the Pentagon Papers included secrets — everything from plots to carry out coups to estimates of other countries’ intentions. What it did not include was just as important. The Pentagon Papers contained almost nothing of any military value to an adversary. It was primarily a history of policymaking.
Ellsberg’s first thought was to get the Pentagon Papers released through a member of Congress, hoping that one of them would use his congressional immunity to introduce the papers into the Congressional Record. In the end, they all declined. So Ellsberg turned to the press.
In his mind, there was one obvious choice: New York Times reporter Neil Sheehan. Earlier, Sheehan had covered the war in Vietnam, and Ellsberg believed (correctly) that Sheehan was opposed to continued U.S. involvement.
Sheehan, who died earlier this year, never identified Ellsberg as his source and never explained in detail how he acquired the Pentagon Papers. All he would say publicly was that he “got” or “obtained” the study — which was true as far as it went.
Once he did and the Times decided to commit to the story, the paper set up a secret “newsroom” at the midtown Hilton in New York City. The set held by the Times represented an unprecedented breach of the national security classification system, and anyone in possession of the report could face criminal charges, not merely of stealing government property but perhaps even of espionage or, ultimately, treason.
In one room at the hotel, Times publisher Arthur “Punch” Sulzberger assembled the newspaper’s lawyers to help him decide whether to publish anything at all. In another room, he assembled a select group of the newspaper’s senior editors and top reporters to wade into the documents and help figure out what to publish.
It all came down to Sulzberger. He would have to put all his chips — the paper he loved, his family’s legacy, the good of his country — on the table. He decided to publish.
So, on Sunday, June 13, 1971, the New York Times carried this banner headline:
VIETNAM ARCHIVE: PENTAGON STUDY TRACES
3 DECADES OF GROWING U.S. INVOLVEMENT
The lead article, written by Sheehan, reported that a “massive” study commissioned by McNamara showed that four presidential administrations “progressively developed a sense of commitment to a non-Communist Vietnam, a readiness to fight the North to protect the South and an ultimate frustration with this effort to a much greater extent than their public statements acknowledged.” Significantly, the Times promised more articles and more documents in the following days.
At first, President Richard M. Nixon did nothing. After all, the summary he got from aides suggested that the Pentagon Papers were mainly critical of Presidents John F. Kennedy and Lyndon B. Johnson — both Democrats. But, fearing that he might look weak if he ignored the leak, Nixon eventually ordered a response.
On Tuesday, June 15, 1971, government lawyers asked the federal court in Manhattan to enjoin the Times from publishing anything further about the Pentagon Papers. That was a momentous step. It was the first time since the adoption of the U.S. Constitution that the federal government had tried to impose “prior restraint” on a newspaper, on grounds of national security.
From the newspaper’s point of view, the issue was the plain meaning of the First Amendment, with its sweeping ban against abridging the freedom of the press. From the president’s point of view, the issue was his duty as commander in chief to safeguard the nation by keeping its military, intelligence and diplomatic secrets, particularly in times of war.
In court, both sides pounded the Constitution. Judge Murray Gurfein, who had just been appointed by Nixon, promptly granted the government’s request for a temporary restraining order and set a hearing for three days later. The Times obeyed this order.
Later that week, however, The Washington Post obtained its own set of the Pentagon Papers from Ellsberg, and the newspaper’s staff swung into action, setting up a command center at editor Ben Bradlee’s house in Georgetown. In one room the writers got to work. In another room the editors and lawyers got busy trying to decide whether to publish at all. Like Sulzberger, Katharine Graham, the publisher of The Post, was betting the house — the company, the newspaper, her family’s reputation. She, too, decided to publish.
That Friday morning, The Post carried a front-page story about the extensive Vietnam study, revealing that it now had the same classified materials as the Times. Government lawyers asked the U.S. District Court in Washington to impose prior restraint on The Post. While Judge Gerhard Gesell refused, the U.S. Court of Appeals for the D.C. Circuit reversed him, forcing The Post to also stop sharing the Pentagon Papers with the American public.
By week’s end, the cases were headed to the Supreme Court on a fast track. Within a week the high court, acting with rare speed, heard arguments and made a ruling allowing the Times and The Post to resume publication. Although the justices wrote nine separate opinions, it was a clear-cut victory for press freedom and the public’s right to know. “The press [is] to serve the governed, not the governors,” as Justice Hugo Black put it.
An edited version of the Papers was soon published in book form, and the American people could finally see for themselves that one president after another had misled them about the war.
Even so, the victory for the people’s right to know left many issues unsettled.
In recent years, the issue of leaks to the news media has persisted. During the Trump administration, for example, officials gathered metadata about the phone records of Washington Post reporters and went after a CNN reporter’s phone and email records.
Democrats do it, too. Under President Barack Obama, the federal government set a record for criminal prosecutions of leakers, and those cases often involved journalists being hauled into court and ordered to reveal their sources or face time in jail.
Aside from punishment for government employees and contractors who leak, the issue of “publication” is more complicated than before. Thanks to the rise of digital platforms on the Internet, such as WikiLeaks, the notion of “prior restraint” is a bit antiquated, since publication now takes place globally at the speed of light.
The Pentagon Papers also pointed out another problem that remains unresolved: the excessive use of classification to keep all kinds of material away from the public.
The real issue for our time remains whether governments have (or should have) the power to chill unauthorized leaking by punishing individuals after the fact. Ultimately, however, the issue is not what rights leakers or journalists may have. In the end, the paramount issue is the public’s right to know what the government is doing. Lacking that knowledge, no people can long govern themselves.