The
Pentagon Papers (Daniel Ellsberg) Trial: An Account
by
Douglas
O. Linder (c) 2011
"[T]he
sonofabitching thief is made a national hero and is going to get off on
a mistrial, and the New York Times
gets a Pulitzer Prize for stealing documents...What is the name of God have we come to?"
--President Richard Nixon (Oval
Office discussion, May 11, 1973)
Background: The Pentagon Papers Study
Secretary of Defense Robert McNamara, who
commissioned the Pentagon Papers study
Secretary of Defense
Robert McNamara, growing concerned that the long war in Vietnam was
unwinnable, first considered in late 1966 commissioning a study of the
history of U. S. decision-making in Indochina. By June of the next
year, the Secretary decided to proceed with the study, which McNamara
said should be an "encyclopedic history of the Vietnam War."
He believed, he later said, that a written record of the key decisions
that led to the U.S. involvement in Vietnam would be of great value to
scholars. Morton Halperin, one of McNamara's top aides, was
chosen to direct the
study. Much of the day-to-day responsibility for supervising the
study was delegated to Leslie Gelb.
The McNamara study staff was given access to McNamara's personal files,
memoranda from the White House and the Joint Chiefs of Staff, State
Department records, and to specially requested information from the
CIA. The frequently rotating professional staff for the study
came from the Pentagon, the State Department, universities, and "think
tanks" such as Rand. One of the first person recruited to help
with the study was Daniel Ellsberg, a former Rand and Pentagon employee
with six years of Vietnam-related experience. Ellsberg's work for
the study focused on the Kennedy Administration's Vietnam policy in
1961.
In early 1969, the "Pentagon
Papers" (formally, History of
U.S. Decision-making in
Vietnam, 1945-1968) study was complete. The
massive work, examining Indochina policy from 1940 to 1968, consisted
of 7,000 pages bound into forty-seven volumes. Pentagon officials
classified the study "Top Secret" and published only fifteen
copies. Although a historical study, officials worried that
information contained in the Pentagon Papers, if it became public,
would make foreign governments hesitant to engage in secret
negotiations or provide secret assistance to the United States
government. Officials also expressed concern that some of the
information contained in the report came from wiretaps and bugging
devices, and should the information be released it would likely
jeopardize electronic surveillance and sensitive sources of information.
Daniel Ellsberg grew increasingly pessimistic about the chances of
anything resembling a U.S. victory in Vietnam. The options, as he
saw them, presented a choice between bad and worse. Shortly after
the election of Richard Nixon as president in November 1968, Ellsberg
was tapped to prepare a study of Vietnam "options" for Henry Kissinger,
Nixon's newly-appointed national security adviser. In presenting
his evaluation of options, Ellsberg found that Kissinger shared his
negative assessment of the odds of a military victory. Ellsberg
felt cautiously optimistic that Kissinger would help push Nixon to a
policy of an early exit from the morass of Vietnam.
After meeting with Kissinger, Ellsberg returned to his work at the
Santa Monica office of Rand, where he began reading the Pentagon
Papers. As he read through the secret history of U.S. support for
French efforts to crush independence movements in Indochina in the
1950s, Ellsberg came to see the continuation of the war in Vietnam as
not just bad policy, but as immoral.
By mid-summer 1969, it became clear to Ellsberg that Nixon had no
intention of simply declaring victory and pulling out of Vietnam.
The president did not want to see the flag of the Vietcong fly over the
city of Saigon. Faced with the prospect of a war without end,
costing thousands of American and Vietnamese lives, Ellsberg pondered
what he might do to bring about a change in U.S. policy. After
attending an emotional conference of War Resisters at Haverford College
in August, Ellsberg suddenly felt "liberated"--and ready to take action
to end the war, even if it put himself at risk.
Convinced that release of the Pentagon Papers would make an already
skeptical public more likely to apply the pressure that might finally
bring an end to our involvement in Vietnam, Ellsberg decided to try to
make that happen. When the public understood how it had been
misled by past presidents, Ellsberg thought, they would no longer buy
what the current president was telling them now. On September 30,
1969, Ellsberg visited the apartment of an anti-war friend of his,
Anthony Russo. Ellsberg told Russo, "You know the study I told
you about a couple of weeks ago? I've got it at Rand, in my safe,
and I'm going to put it out." Russo replied, "Great! Let's do it."
Daniel Ellsberg
The next evening, leaving his Santa Monica office, Ellsberg slipped a
couple of thick volumes of the top secret Pentagon Papers into his
briefcase and headed out through Rand's lobby, past two security cards
who simply waved him by. Ellsberg took the volumes over to
Russo's apartment. From there, the two men and Russo's
girlfriend, Linda Sinay, traveled to the offices of an advertising
agency that Sinay ran. Using a Xerox machine in the agency's
reception area, Ellsberg and Russo began the time-consuming process of
photocopying the Pentagon Papers. They didn't leave the office
until 5:30 the next morning.
The next night, and for many nights thereafter, the copying
continued. Ellsberg knew that what he was doing was a crime--and
he fully expected the day would come when he would pay a heavy price
for his actions. He imagined when his children would come to a
prison somewhere and "see me brought into the visitors' booth in
handcuffs, wearing prisoner's clothes."
In early November, Ellsberg carried the Pentagon Papers to Capitol
Hill, where he met with anti-war congressman to discuss strategies to
end U.S. involvement in Vietnam. Ellsberg told Senator William
Fulbright, chairman of the Senate Armed Services Committee and a
Vietnam
policy critic, that he had a copy of a secret study that might change
public opinion about the war. At Fulbright's suggestion, Ellsberg
left a copy of the Pentagon Papers with Fulbright's legislative aide,
Norvil Jones.
The next year Ellsberg stepped up his anti-war activities. He
resigned from Rand, testified about Vietnam policy before Fulbright's
Senate committee, spoke at an anti-war "teach in" at Washington
University in St. Louis, and argued for an immediate withdrawal on the
national television program The
Advocates. In late August 1970, Ellsberg traveled to
Kissinger's San Clemente office, where he urged Kissinger to read the
Pentagon Papers and to reconsider the Administration's Indochina
policy. Ellsberg left his meeting with Kissinger depressed,
believing that the lessons of history would not be learned and there
was little prospect for a substantial withdrawal of U. S. troops.
By the end of 1970, Ellsberg was giving serious thought to turning a
copy of the Pentagon Papers over to the New York Times. First,
however, he attempted to find an anti-war senator who might release the
study. Ellsberg met with George McGovern, an announced candidate
for the Democratic presidential nomination. McGovern responded
enthusiastically to Ellsberg's suggestion, but later--when the
political implications for his candidacy of releasing a classified
study became clearer--he decided he just couldn't do it. If the public
where ever to find out the secret history of U. S. involvement in
Indochina, Ellsberg would have to go to the press.
On March 2, 1971, Ellsberg traveled to the Washington, D. C. home of New York Times reporter Neil
Sheehan and discussed with him the possibility of turning over to the
paper a copy of the Pentagon Papers. Ten days later, the two men
met again in Cambridge, Massachusetts. Ellsberg sought to get
Sheehan to commit to publishing large sections of the study, and
Sheehan said he would push his editors to do just that. After
Sheehan returned to New York, copy of the Pentagon Papers in hand, he
and other reporters at the Times
spent the next several weeks sifting through the thousands of pages of
the report, looking for reports and anecdotes that would tell a
compelling story of how we got into the mess that had become the
Vietnam War.
The Nixon
Administration Goes to Court to Stop Publication
New York Times
reporter Neil Sheehan, Managing Editor A. Rosenthal, and Foreign Editor
James Greenfield
On Sunday June 13, 1971, the New York Times ran a three-column,
front-page story containing excerpts from the Pentagon Papers. At
the White House, Richard Nixon read the story with a mixture of disgust
and relief. although he told aide H. R. Haldeman that it was
"criminally traitorous" for someone to have turned over the Papers and
for the Times to then publish
them, he was relieved to find that the Papers focused on the earlier
missteps of earlier administrations, not his. His first
reaction was to "keep out of it" and let the story run its course, but
later in the day a riled Henry Kissinger urged Nixon to take steps to
stop publication of further stories based on the Pentagon Papers.
In Kissinger's view, the release of information threatened ongoing
secret negotiations.
As soon as he learned of the Times
impending publication of the Pentagon Papers stories, Ellsberg bundled
a few things from his apartment and went underground. Over the
next couple of weeks, as the FBI searched for him, Ellsberg would move
from one Massachusetts hotel to another, using pay phones for
all his communications.
On June 15, as the Times
published its third installment in the series, the Department of
Justice filed a demand for an injunction against further publication in
federal district court in New York City. After listening to
arguments from lawyers for both the Times
and the government, Judge Murray Gurfein granted a temporary
restraining order against the Times
and then scheduled another hearing for June 17.
With further publication at least temporarily blocked in New York,
Ellsberg contacted Ben Bagdikian of the Washington Post and offered him an
additional copy of the Pentagon Papers. After a heated discussion
between reporters, editors, and lawyers at the Post, the question of whether to
publish in the face of the New York court's injunction was presented to
publisher Katherine Graham. Fully aware of the potentially
serious legal and financial implications of publishing, Graham
nonetheless tells editors, "Okay, go ahead."
Over the next several days, in courthouses in both New York and
Washington, lawyers debated whether the First Amendment permitted the
government to enjoin publication of stories based on the Pentagon
Papers. Lawyers for the papers stressed that "prior restraints,"
such as injunctions of this sort, were "presumptively unconstitutional"
and that the government "had a heavy burden of justification" which in
these cases had not been met. Justice Department lawyers, on the
other hand, argued that information contained in the classified
documents might jeopardize sensitive relationships with foreign
governments and put the lives of military personnel and other
government agents at risk. By June 23, the D.C. Circuit Court of
Appeals had voted 7 to 2 to deny an injunction against publication in
the Washington Post, while
the Second Circuit Court of Appeals had remanded the question of
injunctive relief against the New
York Times to the district judge for further in camera proceedings. It was
obvious to all observers that the issue was headed for a showdown in
the United States Supreme Court. On June 26, one day after
granting review in the Pentagon Papers cases, the nine justices of the Supreme
Court heard oral arguments.
Daniel Ellsberg surrendered to arrest at the federal courthouse in
Boston on June 28, even as a federal grand jury in Los Angeles was
indicting him on charges of theft and espionage relating to his role in
the Pentagon Papers controversy. In Washington, meanwhile,
E. Howard Hunt prepared a memorandum (with the heading "The
Neutralization of Ellsberg") for Nixon aide Chuck Colson in which he
proposed building a file of damning information about Ellsberg that
might destroy his credibility. Among Hunt's several suggestions
was, "Obtain Ellsberg's files from his psychiatric analysis."
On June 30, the Supreme
Court announced a per curium decision in New York Times v United States
holding that the government had not met its heavy burden of showing a
need for an injunction against publication of stories based on the
Pentagon Papers. Separate opinions filed by various justices
revealed a deep split. Justices Black and Douglas attacked the
government's arguments with vengeance, writing that an injunction
"would wipe out the First Amendment and destroy
the fundamental liberty and security of the very people the Government
hopes to make secure." Justices White and Stewart, concurring, staked
out a more moderate ground, suggesting that publication was not in the
national interest, but then concluded that they "cannot say that
disclosure...will surely result in direct, immediate, and irreparable
damage to our Nation or its people." In dissent, Chief Justice
Burger and Justices Blackmun and Harlan complained about the haste with
which the case was decided. The three dissenters also argued that
sensitive and complex foreign policy decisions of the sort raised in
the Pentagon Papers case "should be undertaken only by those directly
responsible to the
people whose welfare they advance or imperil," not judges.
The Ellsberg Trial
Ellsberg talks to the media
In
a recorded June
29 conversation with Attorney General John Mitchell, Richard Nixon
expressed his determination to see Ellsberg brought to justice.
Nixon told Mitchell, " The main ball is
Ellsberg. We've gotta get this son of a bitch....One of our
. . . PR types [was] saying, 'Well, maybe we ought to drop
the
case if the Supreme Court doesn't, uh, sustain and so forth.' And I
said,
'Hell, no!' I mean you can't do that....We can't be in a position
of...allowing the fellow to get away with this kind of wholesale
thievery, or
otherwise it's going to happen all over the government.'"
Despite strong evidence that Ellsberg copied classified government
documents and gave them to the press, the government's case against him
was not without problems. Federal espionage laws targeted most
clearly those who provided foreign governments with classified
information, not those who gave documents to members of Congress or the
American press. Even the theft charge raised issues, as the
defense would argue that Ellsberg--unlike the vast majority of
"thieves"--sought no personal advantage, or advantage for any third
party, from copying documents. The defense could also raise
issues about whether an historical record, such as the Pentagon Papers,
could properly be classified "top secret." Still, as defense
attorney Leonard Boudin told Ellsberg, "Let's face it, Dan.
Copying seven thousand pages of top secret documents and giving them to
the New York Times has a bad ring to it."
In August 1971, when Anthony Russo was called to testify before the
grand jury in Los Angeles about his knowledge of the copying of the
Pentagon Papers, he refused to testify, citing his Fifth Amendment
privilege against self-incrimination. Even after Justice
Department officials promised Russo immunity from prosecution (thus,
under precedent, eliminating his Fifth Amendment privilege claim), he
still refused to talk. On August 16, Russo was sentenced to jail
for contempt of court. He remained there for six weeks. After
Russo's refusal to testify, a new indictment was drafted against both
Ellsberg and Russo. On December 29, the
indictment was returned against both men, including fifteen counts
relating to theft of government documents and espionage. If
convicted on all counts, Ellsberg faced the prospect of a 105-year
prison sentence.
The first trial of Ellsberg and Russo came to a sudden halt in July
1972 when it was disclosed that the government
wiretapped a conversation between one of the defendants and his lawyer
or consultants. Although Judge Byrne refused to stop the trial
because of the wiretap, Justice William O. Douglas stayed the
proceedings until the Supreme Court had a chance to consider the
appeal. In November, the U. S. Supreme
Court, voting 7 to 2, refused to hear defense arguments arising from
the government's wiretap. Nonetheless, in view of the lengthy
break in the trial, Judge Byrne declared a mistrial and ordered a new
jury empaneled.
Anthony Russo
Opening arguments in the second trial of Ellsberg and Russo took place
on January 17, 1973 in the federal courthouse in Los Angeles.
After prosecutor David
Nissen summarized what the government's evidence against the two
men would show, defense attorney Leonard Boudin delivered his opening
statement. Boudin suggested that the Pentagon Papers "belong to
the people of the United States." Because of this public ownership,
Boudin told jurors, copying them and giving them to the press, so that
the American people could be told their contents, should not be
considered theft. "You will come to the conclusion...that the
revelation of this information to your senators and congressmen was
helpful to the interests of the United States," Boudin said.
The government's witnesses testified that the Pentagon Papers were
indeed classified "Top Secret," that Daniel Ellsberg had signed a
security statement with Rand promising not to transmit "classified
information to an unauthorized person or agency," and that neither
Anthony Russo or Linda Sinay had any security clearances. Linda
Sinay Resnick, an unindicted co-conspirator, told jurors that she
observed Ellsberg and Russo copying the secret papers on the Xerox
machine in her ad agency office. The final witness for the
prosecution, FBI agent Deemer Hippensteel, testified that he found the
fingerprints of Ellsberg, Russo, and Sinay on volumes of the Pentagon
Papers submitted into evidence. None of the government's evidence
surprised anyone who had been closely following the case.
Morton
Halperin, the supervisor of the Pentagon Papers task force,
testified for the defense. Halperin testified about the decision
to store a copy of the Pentagon Papers "outside the normal Rand top
secret control system," by simply placing them in a separate top secret
safe. Halperin told jurors that he approved a request from
Ellsberg that he be given access to the volumes for continuing work at
Rand's Santa Monica office on Vietnam policy.
Anthony
Russo, on the stand, admitted the obvious: in the fall of 1969, he
had helped photocopy the Pentagon Papers at the Hollywood office of his
then girlfriend, Linda Sinay. He testified that he did not handle
or even see those documents again until arriving in the Los Angeles
courtroom. Questioned about his years in Vietnam, Russo told of
interviewing Vietnamese in connection with a Rand assignment to prepare
a report on the effectiveness of anti-personnel weapons. Russo
said he learned of many cases in which "young children would pick up"
the shiny, unexploded weapons and take them home, "and then it would go
off and kill the whole family." He testified that his interviews
with Vietnamese prompted a realization that the Viet Cong were not
"indoctrinated fanatics," but rather people with "a real commitment" to
their cause. Russo said he decided to leave the study when he
found that his reports from Viet Nam "were being altered...to promote
the role of the Air Force," Rand's client. Russo testified about
a beach front conversation with Ellsberg in September 1969. Both
men agreed that they had witnessed "a very definite pattern of lying
and deception" from U. S. officials concerning Viet Nam policy. On
October 1, 1969, Russo testified, Ellsberg visited his home and asked
whether he would be willing to help copy the Pentagon Papers
study. During cross-examination, in an answer that was objected
to and stricken, Russo claimed "any American who cared about his
country...would consider it his official duty to get these
documents...to the American people." He admitted, however, that
he knew he lacked security clearance to see the documents.
When Daniel
Ellsberg took the stand, Boudin questioned him about his
experiences in Viet Nam. Ellsberg testified he saw "a very great
divergence" between what he learned "along the roads and hamlets of
Viet Nam" and what military advisers were telling their bosses.
He explained his role on the Pentagon Papers task force and his later
interest in securing access to the finished study. He testified,
"I knew that not a page of [the Pentagon Papers] could injure the
national defense if disclosed to anyone, and had I believed otherwise I
would not have copied it." Ellsberg said he passed on the Papers
in the hope that the revelations contained in them "might give Congress
the self-confidence to act to end the war." On cross-examination,
Ellsberg conceded that he "had no permission from anyone to remove the
documents from the Rand premises."
Eugenio Martinez, one of the men who broke into the
office of Ellsberg's psychiatrist
On April 27, 1973, Judge Byrne turned over to the defense a shocking
memo from Watergate prosecutor Earl Silbert to Assistant Attorney
General Henry Peterson. The memo said that Silbert had just
learned that "Gordon Liddy and Howard Hunt burglarized the offices of a
psychiatrist of Daniel Ellsberg to obtain the psychiatrist's files
relating to Ellsberg." After news of the memo reached the press,
new facts began emerging, including the names of three Cuban-American
Bay of Pigs veterans who committed the actual break-in at Dr. Lewis
Fielding's office. (Two of them, Bernhard Barker and Eugenio Martinez,
had been arrested inside the Watergate offices of the Democratic
National Committee in June, 1972.) Judge Byrne demanded that the
government reveal whether "Hunt and Liddy were acting as agents of the
government at the time of burglary, and at whose direction."
When it became clear that the break-in was committed by employees of
the White House pursuing a project launched by the President, the basis
for a mistrial grew compelling. And in Washington, heads began to
roll. On April 30, Nixon announced the departures of John
Erlichman, H. R. Haldeman, Richard Kleindeist, and John Dean.
On May 11, Judge
Bryne ruled on the defense motion for a dismissal of all charges
against the defendants based on the government's gross
misconduct. Byrne granted the motion, writing that "the bizarre
events have incurably infected the prosecution of this case."
When the judge finished his statement, the courtroom erupted in roars
and laughter. Meanwhile, in Washington, Richard Nixon complained
to his former chief of staff H. R. Haldeman: "The sonofbitching thief
is made a national hero...The New York Times gets a Pulitzer Prize for
stealing documents...They're trying to get us with thieves. What in the name of God have we come to?"
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