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1971: The Pentagon Papers

Forty years before Wikileaks, The New York Times published secret Pentagon documents about the Vietnam War. It turned into one of the most important First Amendment battles in U.S. history.

By Adam Liptak


Last summer, the website Wikileaks began releasing hundreds of thousands of confidential U.S. government documents it had obtained about the wars in Afghanistan and Iraq. By exposing government secrets, the website says, it is furthering the cause of democracy.

Outraged American officials don't see it that way: They accuse Wikileaks of recklessly endangering national security and the lives of U.S. troops and civilians overseas. The debate, in its broad outlines, harkens back to one of the most important First Amendment battles in American history, 40 years ago this summer.

On June 13, 1971, The New York Times published two front-page articles on the Pentagon Papers, a secret study by the Defense Department about America's long involvement in Vietnam. The study revealed, among other things, that over the years Washington had misled the public about the reasons behind the Vietnam War-—which wouldn't end until 1975, after the deaths of 58,000 Americans—and the scope and effectiveness of the war effort.

The Times articles and President Richard Nixon's efforts to stop the newspaper from publishing more about the Pentagon Papers led to a Supreme Court showdown that helped define just how free the press is to report on the workings of government.

"The Pentagon Papers case really gave standing to the press as a kind of fourth branch of government with regard to national security," says David Rudenstine, a lawyer and author of The Day the Presses Stopped: A History of the Pentagon Papers Case.

In March 1971, Neil Sheehan, a Times reporter obtained the Vietnam War study from Daniel Ellsberg, a former Pentagon and State Department official who had secretly copied the 7,000-page report, hoping to make it public. For three months, Sheehan, along with other Times reporters and editors, pored over the documents, eventually moving the project from The Times building in Times Square to a nearby Hilton Hotel to maintain security.

Secret Negotiations

Executives and lawyers at The Times argued among themselves about whether publishing government secrets during wartime was lawful, patriotic, or proper. (In the end, The Times's law firm refused to represent the paper in the case.)

When The Times announced that it planned to publish a series of articles about the study, Nixon, a Republican, took no immediate action against the paper, reasoning that the disclosures would be more damaging to the reputations of his Democratic predecessors in the White House—Lyndon B. Johnson and John F. Kennedy—than to him.

The administration should "stay out of it," Nixon told an aide, because "it doesn't hurt us."

Impact of the Leaks

He changed his mind the next day, after his national security adviser, Henry Kissinger, convinced him that allowing sensitive government secrets to be published would hurt the nation's ability to conduct secret diplomacy around the world. "If other powers feel that we cannot control internal leaks," Kissinger said, "they will never agree to secret negotiations."

So the Nixon administration went to court, arguing that continued publication would do serious harm to the nation's security in a time of war. It said that lives would be lost, the release of American prisoners of war then underway would be halted, and peace negotiations in Paris between the U.S., South Vietnam, North Vietnam, and Viet Cong rebels would be jeopardized.

The government asked Judge Murray I. Gurfein to forbid further publication. It was his first case. He had just been appointed a federal judge in New York—by Nixon. Gurfein promptly ordered The Times to stop publishing articles on the Pentagon Papers. It was the first time in the nation's history that a court had ever forbidden, in advance, the publication of a news article on national-security grounds. The Times complied with the order.

While the Supreme Court had said in earlier cases that "prior restraints" of speech were unconstitutional, it had made some narrow exceptions. In a 1931 case, for instance, it said, hypothetically, that "the publication of the sailing dates of [troop] transports or the number and location of troops" could be restrained.

But after several hours of hearings following his order, Gurfein changed his mind. The next day, he canceled the temporary restraining order against The Times, saying the First Amendment prohibits censorship by the government in all but the most exceptional cases.

The government appealed. In the meantime, The Washington Post had also started publishing the Pentagon Papers, and it was sued as well. In short order, appeals courts in New York and Washington reached opposite conclusions, with the New York court halting publication and the Washington court allowing it. To resolve the conflicting rulings, the Supreme Court agreed to hear the case.

On June 30, 1971, 15 days after The Times had halted publication of its Pentagon Papers articles, the Supreme Court ruled in favor of The Times and The Post by a vote of 6 to 3.

Justice Hugo Black, in one of the opinions supporting the decision, said: "In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The government's power to censor the press was abolished so that the press would remain forever free to censure the government."

Watergate

Most historians agree that the nation's diplomatic and war efforts were no worse off after the publication of the Pentagon Papers.

Many legal scholars say that the Pentagon Papers case was the most important First Amendment case in the nation's history, one that established the principle that almost nothing can stop the publication of truthful information on matters of public concern.

The publication of the Pentagon Papers also led, at least indirectly, to the end of Nixon's presidency three years later: His efforts to find out who leaked the study brought about the abuses of Watergate and his resignation on Aug. 9, 1974—the only time in U.S. history that a President has resigned.

Speaking at a conference a few years ago, Daniel Ellsberg said the moral of the episode was that people in the government with information about improprieties should speak up. He faulted himself for not acting sooner against the Vietnam War and said that whistleblowers should not be afraid to reveal secrets in an effort to save lives, even if it means going to jail.

"Don't do what I did," Ellsberg said. "Don't wait until the bombs are falling . . . until people are dying. Go to the press and reveal."

Neil Sheehan, The Times reporter who first wrote about the Pentagon Papers, later said that the threat of prosecution had not affected him. "If you're afraid of going to jail," Sheehan said, "if the fear of Richard Nixon locking you up is going to scare you, you have no business being a newspaperman."


IS WIKILEAKS LIKE THE PENTAGON PAPERS?
The website says it's a champion of democracy. But some say it goes too far.

Wikileaks was founded in 2006 by a group of anti-secrecy activists led by Julian Assange, an Australian journalist. It has gained notoriety in recent months for posting hundreds of thousands of classified documents about the wars in Iraq and Afghanistan—some of which it shared with The New York Times and The Guardian in London, among others. Though the publication of government secrets during wartime raises many of the issues the Pentagon Papers case did about free speech and national security, Wikileaks has also complicated the debate in important ways.

Some question whether Wikileaks deserves the same press protections as newspapers like The Times, which has a policy of editing out material that might compromise national security. Wikileaks, by contrast, posts vast amounts of information indiscriminately, which some say endangers the lives of American soldiers.

The Internet, which has made copying and sharing information so easy, is also changing the business of whistleblowing. In 1970 and 1971, Daniel Ellsberg had to manually photocopy 7,000 documents over several months before sharing them with The Times. By contrast, Private Bradley Manning, the 23-year-old Army intelligence analyst accused of being the source of the Wikileaks war documents, allegedly downloaded hundreds of thousands of sensitive files, then simply copied them onto old Lady Gaga CDs before sharing them with the website.

Manning is now in a military detention center in Virginia and is expected to be court-martialed in the spring. If convicted, he could face life in prison. He reportedly wrote in an e-mail, "I want people to see the truth regardless of who they are because without information, you cannot make informed decisions as a public."

Governments will have a hard time preventing leaks like the Afghanistan and Iraq documents, says constitutional lawyer David Rudenstine: Websites can instantaneously post unlimited amounts of information before the courts can get involved. "Once it's out there," he says, "the government can't put it back in the bottle."

—Veronica Majerol

(The New York Times Upfront, Vol. 143, February 21, 2011)