Review of The Pentagon Papers for the Layman
Updated: Feb 2
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By Eric A.S. Harvey, JD
COPYRIGHT PENDING 2020
Photo Credit: SupremeCrtCases.weebly.com
“I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.”
Upon surrendering himself to authorities in Boston, Vietnam War era whistleblower Dr. Daniel Ellsberg, who had leaked the scandalous study of America’s ethically and legally questionable involvement in Southeast Asia from 1945 to 1967, The Pentagon Papers to The New York Times in 1971, said this in defiance of Nixon’s military campaign in Vietnam. The dissemination of The Papers was a risky task, considering providing those not authorized to be in possession of classified information, such as what comprised The Papers, with said classified information carries the possibility of severe criminal penalties under espionage and sedition laws.
Originally titled Report of the Office of the Secretary of Defense Vietnam Task Force, the Southeast Asian chronicle was initiated under Secretary of Defense Robert McNamara in 1967. McNamara, who kept work on this report secret from President Lyndon B. Johnson and Secretary of State Dean Rusk, had allegedly planned to provide Robert F. Kennedy with the report, as Kennedy was preparing to run for office in 1968. McNamara later denied that this was his intention.
With the compilation of The Papers, it was not clear at the time the report was executed whether McNamara intended to influence Kennedy’s stance on the war in a way that would radically alter the course of America’s campaign in Vietnam.
For example, in In Retrospect: The Tragedy and Lessons of Vietnam, McNamara claimed that, with The Papers, he meant to provide historians with a meticulously comprehensive written record (totaling 7,000 pages) in the hopes of preventing future policy errors. In addition, the documentary, The Fog of War (2003), which features extensive interviews with McNamara, strongly suggests McNamara’s intention for the report to be reviewed as a warning. However, Pentagon Policy Director Leslie H Gelb, who assisted in the execution of the report, claimed otherwise. When journalist Bob Garfield interviewed Gelb on New York Public Radio as part of a review of the film, The Post (2017), which tracks The Washington Post’s coverage of corruption in America during the Vietnam War, Gelb said the following:
“I think it’s an explanation that Bob McNamara came up with after the fact. And he told some people that he was doing this to save future leaders from making the same mistakes and he told others, who didn’t like it, for example, he told Dean Rusk that he never asked for these studies, he just wanted a collection of documents.”
It would be nice to know whether McNamara felt anxieties about America’s involvement in Southeast Asia at the time the report was compiled. Such anxieties, manifested at that time, might suggest the degree to which opposition to the war was brewing behind the closed doors of government and away from the American public’s consciousness. Gelb’s claim muddies the waters.
Whatever the case may be, the report documented problematic practices by the highest levels of American government in Southeast Asia. As is covered in the documentary on Dr. Ellsberg, The Most Dangerous Man in America (2009), President Eisenhower bankrolled France’s colonial control over Vietnam in order to contain The Red Scare emanating from China and the Soviet Union. President John F. Kennedy continued the containment policy, ineffectively using government resources to stall the so-called “Domino Effect” — the Cold War-era theory that if one country became subservient to a Communist regime, the areas surrounding that country would soon fall to Communism as well. As is claimed in the aforementioned documentary, no president was willing to admit that they couldn’t win the fight against Communism. So, they just attempted temporary solutions in order to pass the problem that Communism posed onto the next president in the hopes that their reputations and chances at maintaining power would not be compromised.
What I mean to point out in this series of articles, and what is important in my exploration of how unjust and illegitimate use of espionage and sedition laws are in besmirching and criminalizing whistleblowers is, is that even the most venerated public officials, and even presidential heroes like the aforementioned President Kennedy (under whom McNamara served), possess dark sides, are heroes only ostensibly, and are, I contend, problematically interested in maintaining their authority without justification. But it is not these ostensible heroes that ultimately shoulder responsibility for America's crimes. It is the whistleblowers that do.
As this series of articles will show, and as I will continue to demonstrate in this installment you are now reading, it is the deceptive nature of governments that whistleblowers target. It is for informing the public of crimes within government that whistleblowers are persecuted. While American presidential administrations have committed atrocities since time immemorial, it is not the government that is put on trial. It is the real heroes, such as the whistleblowers, that ultimately bear the brunt of American corruption.
Now, let’s return to our discussion of The Papers. To maintain the secrecy of work on the report, McNamara refrained from using historians employed by The Department of Defense. Ultimately, using unofficial historians, the report was executed under the aforementioned Gelb. Again, with the use of non-official historians, it is important to think about the secrecy of McNamara’s conduct. Dissidence within American government by governmental officials may have only grown as the Vietnam War progressed.
In the time immediately following the completion of the study, when the report made its way into the hands of an employee at the think tank The Rand Corporation, and after spending seven months photocopying the report in its entirety, Dr. Ellsberg (also a Rand employee) disseminated The Papers to a handful of entities, including Senate Foreign Relations Committee Chair J. William Fulbright and Democratic presidential nominee George McGovern. Dr. Ellsberg thought he would find a sympathetic ear in Fulbright and McGovern, who were two vocal opponents to the war. In addition, officials such as these are immune to criminal prosecution for issues revolving around the dissemination of information like what is found in The Papers. Dr. Ellsberg wasn’t really a law-breaking fiend, as the Vietnam War era government claimed. In providing these officials with the report, he was attempting to mitigate the possible legal fallout that could occur, if he were to go immediately to the press with sensitive information.
However, also ultimately provided with the report were researchers at the Institute for Policy Studies and New York Times correspondent Neil Sheehan. Prior to publication of The Papers by The New York Times, Democratic Senator of Alaska Mike Gravel read the report during a filibuster on the floor of the Senate on 29 June 1971. For three hours, he recited The Papers, often bursting into tears as he vocalized the brutality documented in the report. At one point, he prematurely terminated the filibuster due to extreme emotional and physical exhaustion.
13 June 1971 The New York Times began releasing The Papers in installments, following an article by the aforementioned Sheehan in NYT that served as a precursor to the release. Other news publications, including The Washington Post soon followed suit. It was abundantly clear in these installments that American presidents, from Eisenhower thru LBJ, had lied to the public repeatedly about the most fundamentally important aspects of America’s campaign in Southeast Asia. And it was eventually pretty clear that the situation with governmental dishonesty was exponentially worse under Nixon.
Worrying about the threat to its power that the public’s exposure to The Papers might entail, the Nixon administration mobilized under the guidance of National Security Advisor Henry Kissinger.
Dr. Ellsberg and his colleague from The Rand Corporation, Anthony Russo were charged with theft of classified information and conspiracy under the Espionage Act of 1917. The charges meant the possibility of over 100 years in prison for Ellsberg and 35 years in prison for Russo. But, during the lead-up to the trial, it was discovered that Nixon cronies had broken into Dr. Ellsberg’s psychiatrist’s office in an attempt to illegally obtain evidence of Dr. Ellsberg’s so-called “crime.” As a result, 11 May 1973 U.S. District Court Judge William Byrne Jr. dismissed all charges against the two.
Even though the case was dismissed, the U.S. government attempted to enjoin NYT from releasing The Papers. Lower courts granted the injunction. However, the Supreme Court in New York Times Co. v. U.S. invalidated the injunction, and all news publications in possession of The Papers were given the green light in resuming their publication of the report.
In the next article, I will explore the triumph for The First Amendment that New York Times Co. v. U.S. represents. As a taste of what I mean by this, just know that Founding Father and fourth president of the United States James Madison is quoted, in the opinion for the case, by Former Associate Justice of The Supreme Court Hugo Black as follows:
“The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
In addition, in his concurrence with Justice Black, Justice William O. Douglas asserts that, “Secrecy in governments is fundamentally anti-democratic […]”
So, why almost 50 years later are attorneys for the American government ignoring precedent in the current Assange extradition trial? Why are they attempting to use espionage and sedition laws penned in 1917 and 1918, respectively, in an internally consistent way. I say internally inconsistent because the legislative history of the laws indicates that these anti-espionage and anti-sedition statutes apply only to spies, and not to news publications. Why are American authorities attempting to criminalize the exposure of government corruption? Why would whistleblowers’ dissatisfaction with and anxieties about government corruption that may, as was likely the case with McNamara in regards to The Papers, reflect governmental officials’ own dissatisfaction with and anxieties about that corruption be suppressed? It seems that whistleblowers are merely doing the work of sheepish governmental officials that are not heroic enough to be truly patriotic in a way that curtails government corruption.
In light of New York Times Co. v. U.S., I will continue to contend that Wikileaks is a publication insofar as it, like NYT with The Pentagon Papers, publishes documents that are comparable to any exposé found in so many newspapers. The information may be embarrassing to corrupt governments, but precedent indicates that exposing the public to even information that demonizes the American government (or any government for that matter) is to be commended, as it was by Justice Black, when he said in New York Times Co. v. U.S., “In revealing the workings of government that led to the Vietnam War, the newspapers did precisely that which the Founders hoped and trusted they would do.”
Stay tuned. Much to come.
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