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“When everything is classified,” Supreme Court Justice Potter Stewart wrote, “then nothing is classified.”
Just one of the many riddles confronted 25 years ago this month by the most powerful institutions of our society—the nation’s two most influential newspapers, the Nixon administration, and the Supreme Court—during a brief, frenzied period of litigation known under the umbrella term “the Pentagon Papers case.”
In American History 101, the fable of the Pentagon Papers goes roughly like so:
Back in June 1971, the New York Times, the Washington Post, and soon a clutch of other newspapers began publishing articles based on a top-secret government study that had been stolen and leaked by a disaffected national security insider. The study, consisting mainly of official documents from the 1940s to the 1960s, purportedly showed how at least three successive U.S. presidents (Eisenhower, Kennedy, and Johnson) had systematically misled the American people about the origins and progress of U.S. involvement in the Vietnam War.
The so-called Pentagon Papers traced American intervention in Southeast Asia only through 1968, and therefore did not cover Richard Nixon’s 2-year-old presidency. But the fable tells us that Nixon himself was innately evil, was deceiving the public about his own conduct of the war, hated the news media, and acted to curtail the newspapers’ First Amendment rights. Thus, he ordered his attorney general, John Mitchell, to file suit in various courts to enjoin the newspapers from publishing any further stories based on the 7,000 leaked documents.
While the administration initially succeeded in its effort, the Supreme Court quickly decided in favor of the newspapers. Fifteen days after they had been muzzled, the newspapers resumed publishing the bombshell documents. Though the episode marked the first time in American history that a news organization had been prevented from disclosing news because of prior government intervention, the outcome ringingly reaffirmed this country’s high-minded devotion to freedom of speech.
Within a few years, the fable goes, muzzler-in-chief Nixon was rightly driven from power, thanks to the watchdog vigilance of the same incorruptible news media he had sought to castrate. Mitchell, the nation’s most prominent law enforcement officer and the living embodiment of Nixon’s tough law-and-order rhetoric, became the nation’s most prominent convicted felon. And of course, the U.S. stopped fighting in Vietnam.
Meanwhile, the man who stole and leaked the documents, Daniel Ellsberg, was spared criminal prosecution for his acts (and became a regular on The Dick Cavett Show) after it was revealed that members of the Nixon administration had burglarized Ellsberg’s psychiatrist’s office seeking unflattering information about the leaker. The media’s revelation of the Ellsberg break-in helped seal the fate of Nixon and his men.
Like most fables, the tale boasts a certain symmetry and a vaguely pleasing resolution, but it badly distorts reality. Those interested in a more thoughtful appraisal of the controversy must consult David Rudenstine’s new history of the affair, The Day the Presses Stopped: A History of the Pentagon Papers Case. An associate dean of Yeshiva University’s Benjamin N. Cardozo School of Law, Rudenstine gives us many gifts at once. His book is surely the definitive study of the Pentagon Papers, a useful primer on the workings of civil law and First Amendment freedoms, and one of the more balanced, sober meditations on the Nixon years.
Rudenstine meets the responsibilities incumbent on serious historians. With the assistance of former U.S. Attorney Rudolph Giuliani, Rudenstine secured the declassification and release of hundreds of documents generated by the Pentagon Papers litigation that had remained sealed to this day, as even a few pages still do—an ironic situation given the court-ordered publication of the Papers themselves.
Rudenstine’s archival achievement not only traces the case’s tense progression from the district-court level up to the Supreme Court (as previous studies have done), but also allows us to see for the first time what transpired behind closed doors of in camera judicial proceedings. In addition, Rudenstine uses previously released handwritten notes of White House aides H.R. Haldeman and John Ehrlichman, and Supreme Court Justice William O. Douglas, to illuminate the private thoughts of those men’s respective institutions. While Rudenstine’s list of interviewees is not exhaustive, he managed to get some tough ones, including Mitchell, William Rehnquist, and William J. Brennan.
Rudenstine’s most important contribution to the literature of the Pentagon Papers is to provide an essential element lacking in previous books: detachment, achieved only with the passing of an era’s passions and the inspection of formerly sealed government exhibits.
Consequently, Rudenstine is able to put forth some heretofore heretical views. He contends that the Nixon administration actually pursued honorable goals when it sought injunctive relief from the courts, and that the Supreme Court actually disapproved of the newspapers’ conduct in spite of its legal decision.
“All the evidence reviewed in the pages,” Rudenstine writes in a characteristically reserved tone, “suggests that it is a misconception to interpret the Nixon Administration’s decision to sue the [newspapers] as one more action intended—either entirely or mainly—to strike yet another blow against the press….If [Nixon’s] main motive had been to intimidate the press, then there were other—far less risky—legal remedies available.” Rudenstine says the administration could have brandished the “powerful and frightening weapon” of grand jury investigations before the newspapers (as it eventually did with Ellsberg), but instead chose the less bloody path of civil litigation. All in all, the author concludes, “It seems indisputable that the Pentagon study contained information that could have seriously harmed the national security if disclosed.”
A generation of high-school students has learned that the Supreme Court’s decision in the Pentagon Papers case staunchly upheld the freedom of the press. In fact, as Rudenstine notes, “[N]o fewer than four of the justices in the majority raised the appropriateness of a criminal prosecution against the newspapers.” When the dissenting justices were counted, a majority of the nine justices “made a concerted effort to convince the Justice Department not to let the government’s defeat in the case block a subsequent criminal prosecution [of the newspapers].” That the justices allowed the presses to roll again was not the result of any absolute belief in freedom of speech. Their 6-3 decision reflected their consensus that the Nixon administration’s hastily convened group of expert witnesses simply failed to meet the definable standards for showing that further publication would “directly and irreparably” harm the nation. (All nine justices filed separate opinions with slight variations on the “direct and irreparable harm” construction.)
“No doubt,” writes Rudenstine, “the government might have lost even if its strategy was flawless and its execution perfect. But neither was, and it is uncertain whether the outcome would have been different.” To this end, Robert Mardian, the Mitchell aide in charge of the subversive-hunting Internal Security Division of the Justice Department (and later the lone big-name Watergate defendant to overturn his conviction on appeal), emerges as Rudenstine’s chief villain. The strong-headed aide is depicted as “arrogantly” pushing an extreme legal theory (that the documents were classified pursuant to executive-branch powers, so their mere status as classified documents should warrant their censorship), instead of a more pragmatic approach with a better chance of winning.
Rudenstine faults Kissinger for inciting Nixon to seek retribution against the Times and the Post, when the president’s initial inclination was to do nothing and watch former Kennedy/Johnson aides run for cover. The author provides the most comprehensive review to date of Kissinger’s tangled relations with Ellsberg both before and during the Nixon presidency. The unstated but clear implication is that Kissinger, a former national security consultant to both Kennedy and Johnson, wanted Nixon to act because he feared what the Pentagon Papers could reveal about his own role in the war prior to 1969. One hopes both Mardian and Kissinger will somehow respond to the book.
The Day the Presses Stopped is not without faults. Rudenstine makes a habit of lamenting that we cannot know the thoughts of Ellsberg, Mardian, or some other pertinent player, even when his interview list shows that he spoke to the figure in question, sometimes more than once. He too often summarizes individuals’ remarks from interviews, instead of quoting directly. And he sometimes makes assertions that beg the question “How do we know this?” An example: “Nor did the newspaper disclosures destroy the willingness of third parties to continue to act as go-betweens between the United States and other [countries].” Simply canvassing the memoirs of former officials and finding no reference to a new hesitation by third-party intermediaries does not give cause for this blanket assertion.
Factually, Rudenstine gets very little wrong, but he errs when he avers that the White House plumbers “located Ellsberg’s [psychiatric] file, but found no information to help the prosecutors or the public relations campaign [against Ellsberg].” Jim Hougan’s 1984 book, Secret Agenda: Watergate, Deep Throat, and the CIA, makes a plausible case that the real fruits of the Watergate break-in were diverted from the administration’s hands to the CIA by plumber E. Howard Hunt. Given the links Rudenstine makes between the Pentagon Papers and Watergate, it is disappointing to see that his bibliography omits Secret Agenda and Len Colodny and Robert Gettlin’s 1991 best-seller, Silent Coup: The Removal of a President, the two most provocative books yet about Watergate, the Ellsberg break-in, and related subjects.
All told, however, The Day the Presses Stopped is impressive both for Rudenstine’s prodigious, footnoted research and his balanced historical view. This book should ignite the kind of reconsideration of history the Pentagon Papers sparked 25 years ago, and that Rudenstine calls for today. As Oscar Wilde noted, our lone duty to history is to rewrite it.CP