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  The coming attempt to prosecute for violation of the government’s classification orders involves nothing less than the future of representative government. For if the government can continue to abuse its secrecy stamps to keep the press, the Congress and the people from knowing what it is really doing—then the basic decisions in our country are in the hands of a small army of faceless bureaucrats, mostly military. The struggle comes at a climactic moment when Hanoi’s new peace offer and public weariness with the war make it all the more necessary for the bureaucratic machine to prevent new leaks by intimidating its own mavericks and the press. Duplicity is more requisite than ever when the other side makes it necessary plainly to choose between release of the prisoners or continued pursuit of a military-political victory in South Vietnam. From every indication, Nixon’s answer, however veiled, will be to pursue the war. This will intensify his conflict with the media.

  First, as to the facts: Trial of the government’s action against the New York Times and the Washington Post proceeded on the assumption that two documents in their entirety were in the hands of these newspapers—a 47-volume Pentagon history of our involvement in Vietnam from 1945 to 1968, and a “Command and Control” report on the Tonkin Gulf incidents of 1964. The government was invited to “pinpoint” for the trial judges, the two Courts of Appeal and the Supreme Court precisely which portions of these documents were so sensitive that their publication warranted an order forbidding the papers to publish them. To give the government greater leeway, it was allowed to present much of its evidence in secret. This was the first secret proceeding of its kind ever held in the U.S. courts, itself a disturbing precedent for the future. Yet of the 27 Federal judges who passed on the government’s pleadings not a single one thought the evidence impressive enough to warrant a preliminary injunction. The government was able to obtain nothing more than temporary restraining orders pending trial and appeal, and those who dissented on the appeals courts and the Supreme Court did no more than argue for a remand for further hearing. This is the best measure of just how dubious the government’s system of classification looked even to sympathetic judges in secret hearings.

  Some of the dissenting judges thought the case was disposed of too hastily, and that the government should have had more time. But the government had had ample time to review the two documents involved. The Senate Foreign Relations Committee has been negotiating with the Pentagon for the Command and Control document since early in 1968 and the so-called Pentagon Papers since November 1969. At least half a dozen letters have passed between Chairman Fulbright and Secretary Laird about these documents, and the Pentagon classification officer who was assigned to review them as a result of Fulbright’s repeated requests testified during the trial. The government had plenty of time to decide what in the documents was really sensitive. Apparently the judges didn’t think very much was. But only as this is written the Senate Foreign Relations Committee has finally received copies of both. It took a tidal wave of a leak to pry them loose but they arrived still stamped ‘Top Secret’! The truth about the Tonkin Gulf incidents may be buried in the Command and Control report but the New York Times completed its series without disclosing what was in this document and the Senate Foreign Relations Committee is still forbidden by the ‘Top Secret’ stamp from discussing the contents publicly. It will be seven years next month since the Tonkin Gulf incidents occurred and we still don’t know the full truth about them, though they were used to get a blank cheque for war from Congress.

  The two dissenting judges who were most impressed with the government’s case were Judge Wilkey on the Court of Appeals for the District of Columbia and Mr. Justice Blackmun on the Supreme Court. They felt that if the newspapers had, and if they published, certain documents dealing with diplomatic negotiations this would do great harm. But Dr. Ellsberg at his press conference in Cambridge 28 June said he withheld “several” of the 47-volume Pentagon Papers from the newspapers because they involved secret negotiations with Hanoi, Moscow and other foreign capitals. On N.B.C.’s Today show 2 July, he said he gave the full set to the Senate Foreign Relations Committee but did not retain any copy of these diplomatic volumes “since I had no intention of giving them to the newspapers at any time.” In oral argument before the Supreme Court, the Solicitor General said he had “pinpointed” ten sensitive items in his secret brief and that one of them was made up of four volumes “all dealing with one specific subject.” Are these the volumes Dr. Ellsberg withheld?

  The newspapers provided the court with inventories of the documents in their possession. The Solicitor General told the Supreme Court that the government’s experts had difficulty in matching this inventory against the 47-volume Pentagon Papers. There may have been difficulty in matching individual items but it is hard to understand why they could not match up an ‘item’ as large as four related volumes. A week before the oral argument, the Christian Science Monitor (19 June) carried a story from Washington saying that Pentagon experts, after they compared the published reports in the Times “with the still guarded and highly classified originals,” decided that the disclosures were “something less than catastrophic.” They informed higher officials “that some potentially damaging material, particularly in terms of America’s relations with other nations (our italics) had been omitted.” This sounds as if they spotted the material Ellsberg withheld. It is a pity the secret record cannot be opened up to resolve this mystery. The government’s most impressive cause for alarm would have been eliminated by the admission that these volumes had never reached the newspapers at all.

  All this may explain the curious vagueness and equanimity displayed by Deputy Under Secretary of State Macomber on the Today show 5 July, the day the New York Times series ended. He admitted that Dr. Ellsberg had withheld some sensitive documents and that the newspapers themselves had withheld others. When asked whether the New York Times or the Washington Post had published items “the government has pointed to as particularly sensitive,” he replied, “I don’t think the Washington Post has. I think the New York Times may have. I don’t want to say it has. I’m not sure.” So this is the molehill to which the government’s mountainous original charges dwindled.

  The government made an even poorer showing on the law. Solicitor General Griswold’s argument was downright trivial and the few precedents he cited were irrelevant and quoted out of context. Unfortunately the newspaper lawyers were no better. Never was a great case argued so feebly. No one took the First Amendment as his client. The defence lawyers argued the case as narrowly as possible in order to get their newspaper clients off the hook. Professor Alexander Bickel whom the New York Times retained specially for the occasion, is no firm defender of the First Amendment; he holds the “balancing” view Frankfurter among others propounded. This holds, as Griswold flatly said during argument, that where the First Amendment says “Congress shall make no law . . . abridging freedom of the press,” it does not mean what the plain words say but only that freedom of the press must be “balanced” against other public considerations. Bickel agrees with Griswold. This nullifies the intention of the Framers.

  The crisis for which the bar and the press must mobilize lies in the fact that never before have the courts had to confront the freedom of the press issue in this form. The publication of secret government papers is hardly new. A patriot newspaper in Boston, thanks to a leak from Benjamin Franklin, published the Royal Governor’s correspondence on the eve of the Revolution. The furore over the Sedition Act began in 1798 when John Franklin Bache (Benjamin’s grandson) published secret diplomatic documents to attack the covert Federalist war against France. But this was before the days of “classification” and leaks of this kind were prosecuted as seditious libels intended to bring the government into disrepute. What we face now are the first prosecutions of the press for upsetting the government’s system of classification. The freedom of the press issue is thereby entangled with the question of national security.

  A government cannot be de
nied the right to some secrets, especially in wartime. But what makes this case so crucial is that Dr. Ellsberg’s leak and its publication in the press represented the first open revolt against a system of secrecy which has reached cancerous proportions and threatens unless checked to destroy free government itself. The amount of information now stamped secret and withheld from the press and Congress is staggering. The Washington Star estimates (8 July) that Pentagon Xerox machines produce about 100 million documents a year. A recently retired Air Force security officer told a House Government Information subcommittee 24 June, “I would guess that there are at least 20 million classified documents, including reproduced copies, in existence” and added, “I sincerely believe that less than one-half of one percent of the different documents actually contain information qualifying even for the lowest defence classification.”

  The Pentagon Papers showed that the government has been carrying on secret warfare in Indo-China since 1954. They disclosed for the first time the full dimensions of the arrogance, duplicity and inhumanity with which successive Administrations got us into this horrible mess which is tearing the country apart and demoralizing the armed forces themselves. It was the height of Nixon-era banality for Chief Justice Burger to say that a newspaper editor, handed such documents, should, like a taxi driver who finds stolen goods in his cab, turn them over to the police! To reduce such historic revelations in the midst of an agonized public debate over the war to the dimensions of a simple case of larceny and receiving stolen goods is utterly to miss the function of a free press in a free society.

  Representative government is menaced today by a cloud of secrecy. The Daniel Ellsbergs and Neil Sheehans are too few; a Senator like Gravel willing to challenge the classification system in which Congress has acquiesced for so many years, is unique. We need more such rebels, not fewer, if free government is to survive.

  In the fight against government secrecy we need to apply in a fresh form the philosophy of risk which laid the foundations for real freedom of the press in the earlier struggle against the law of seditious libel. It is often forgotten that after prior restraint or censorship ended almost three centuries ago, the press was still shackled by the common law of seditious libel. Editors went to jail for bringing government into disrepute; the rule was that the greater the truth of their publications the greater the offence; royal governors decided the law and made conviction by the jury almost a foregone conclusion. The reformers sought to protect the press by making the jury the judge of the law as well as the facts, and to make truth a defence. The Sedition Act of 1798, so notorious in our history, actually embodied these reforms, though its purpose was repressive. Like Fox’s historic Libel Act six years earlier in England, it made the jury the judge of the law as well as the facts; in addition the Sedition Act made truth a defence, something English law did not achieve until 1843.

  But these long-sought reforms proved illusory. In the heat of partisan passion, only one jury failed to convict in a Sedition Act case and “truth” proved difficult to determine. It became clear that freedom of the press could only be secure if the press were allowed to propagate error. Otherwise censorship was only replaced by prosecution after publication. It was in the battle against the Sedition Act that the Jeffersonians for the first time* hammered out the libertarian doctrines which have made ours the freest press in the world. The philosophy to which we are indebted runs in a great line from Madison, the Father of the Constitution, to Brandeis, and from them to Black and Douglas. It says that freedom is impossible without risk of repression. This is what the best young people yearn for under Communist rule and this is what we are in danger of forgetting in the Nixon era.

  We must apply the philosophy of risk to the new circumstances. Talk of reforming the classification system will soon evaporate. Successful prosecutions would only nail it down. The path of least resistance is that which Nixon has already charted: to cut down the number of persons with access to secret documents and to tighten up on security. It would in any case take a small army many years to review the classification of all our secret documents. The only hope lies in jury acquittals in the coming prosecutions, and in arguing that the only possible check on the abuses of overclassification and secrecy is to allow unpunished the leak and publication of documents like the Pentagon Papers. Congress by twice refusing to enact an Official Secrets Act in wartime has shown itself of a similar mind. Men of courage are all too rare; the circumstances which bring establishment papers to print such documents are even rarer. This is the only safety valve we have if the people’s right to know is not entirely to disappear.

  * * *

  *One may find this ably developed in Leonard W. Levy’s book, Freedom of Speech and Press in Early American History.

  Part Two

  A GOOD WAR—BUT FOR WHAT?

  War Comes to Washington

  It is always easy to project backward onto historical moments the conceptions and feelings of a later time. Decades after the entry of the United States into World War II, we think we recall an America instantly roused to righteous, united fury by the attack on Pearl Harbor. The snapshot offered in this article written at the time is subtly different. Stone writes of the impact of Pearl Harbor on the long-standing conflict between American isolationists and the “pro-war faction”; he notes “a sense of excitement, of adventure, and of relief” among the citizens of Washington, D.C., over the advent of war, and few signs of indignation directed toward the Japanese “treachery.” Perhaps most surprising of all, he remarks, “We are going into this war lightly”—a startling comment from today’s standpoint, knowing as we do the tragic sequels: Stalingrad, Dachau, Dresden, Auschwitz, Hiroshima.

  . . .

  December 13, 1941

  I FIRST HEARD THE NEWS from the elevator man in the National Press Building. The ticker at the Press Club, normally shut off on Sunday, carried the first flash telling of the Japanese attack on Pearl Harbor. It was a beautiful late-autumn Sunday, the sky clear and the air crisp. At the entrance to the White House a small crowd had gathered to watch Cabinet members arrive. In the reporters’ room inside a group was clustered around the radio. I talked to Ambassador Hu Shih by telephone, and he said he felt “really sad” and sounded as though he meant it. The Navy Department seemed busy but calm; the War Department less so. Soldiers in helmets, carrying guns with fixed bayonets, guarded the entrance to the War Department’s half of the huge old Munitions Building. They looked awkward and uncomfortable.

  The public-relations office of the War Department refused a request for background material on the comparative military strength of the United States and Japan on the ground that since four o’clock that afternoon all information on the composition and movement of troops abroad had been declared a secret. The Navy Department, less strict, was still giving out information already “on the record,” thus saving reporters a trip to the Library of Congress. In the Navy Department reference room women employees, hastily summoned from their homes, sent out for sandwiches and coffee and joked about Japanese bombers. There as elsewhere one encountered a sense of excitement, of adventure, and of relief that a long-expected storm had finally broken. No one showed much indignation. As for the newspapermen, myself included, we all acted a little like firemen at a three-alarmer.

  The first press release from the State Department spluttered. It said the Secretary of State had handed the Japanese representatives a document on November 26 stating American policy in the Far East and suggestions for a settlement. A reply had been handed the Secretary of State that afternoon. The release declared that Secretary Hull had read the reply and immediately turned to the Japanese Ambassador and with the greatest indignation said: “. . . I have never seen a document that was more crowded with infamous falsehoods and distortions—infamous falsehoods and distortions on a scale so huge that I never imagined until today that any government on this planet was capable of uttering them.” I asked several other reporters at the State Department just what the Japanese had
told Secretary Hull to make him so angry. Nobody seemed to know, and the release did not explain. Hull’s language was later described by one reporter as being “as biting if not as deadly as his fellow-mountaineer Sergeant York’s bullets.” It is a long time since Secretary Hull was a mountaineer.

  The Japanese memorandum, released later, made it easier to understand the Secretary’s stilted indignation. One has to go back to Will Irwin’s “Letters of a Japanese Schoolboy” to match this memorandum. “Ever since China Affair broke out owing to the failure on the part of China to comprehend Japan’s true intentions,” said one of the more humorous passages, “the Japanese government has striven for the restoration of peace, and it has consistently exerted its best efforts to prevent the extension of war-like disturbances. It was also to that end that in September last year Japan concluded the Tripartite Pact with Germany and Italy.” The memorandum indicates only the vaguest shadow of any American intention to appease Japan. At one time the President seems to have offered to “introduce” peace between Japan and China and then—I suspect after the visit to the White House of Hu Shih and T. V. Soong—withdrawn it. But the kind of peace the President might have “introduced” could hardly have been to Japan’s liking, though the idea may have made the Chinese uneasy. The Japanese memorandum accuses our own government of “holding fast to theories in disregard of realities,” of trying to force “a utopian ideal” on the Japanese, and of “refusing to yield an inch on its impractical principles.” I hope these compliments were fully deserved.

  The proposals made by Secretary Hull in his letter of November 26 were so obviously unacceptable to a government like Japan’s that one wonders why we negotiated at all. Japan was to withdraw all its troops from China and not to support any other government there except “the National Government” . . . with capital temporarily at Chungking.” Our War Department is said to have asked the White House for three more months in which to prepare, and it may be that the Japanese were also anxious to delay a crisis. It is suspected in some quarters here that the attack on Pearl Harbor was the work of a minority in Japan fearful of further “stalling.” The attack came before the Emperor could reply to the President’s personal appeal for peace. If it forced the hand of the Japanese government, it also succeeded in uniting our own country behind Mr. Roosevelt. The reactions of the isolationist press and of Senators like Wheeler are indicative. If Mr. Roosevelt leaned too far in one direction to please the anti-appeasement and pro-war faction, his tactics served to prove to the other side that he had done all in his power to avoid war, that war was forced upon him. Lincoln in the same way hesitated and compromised and sought to “appease” before war came.