The Day the Presses Stopped: A History of the Pentagon Papers Case

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Overview

This bold account provides an original perspective on one of the most significant legal struggles in American history: the Nixon administration's efforts to prohibit the New York Times and the Washington Post from publishing the 7,000-page, top-secret Pentagon Papers, which traced U.S. involvement in Vietnam.
In his gripping account of this highly charged case, Rudenstine examines new evidence, raises difficult questions, and challenges conventional views of a historic moment.

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Editorial Reviews

Publishers Weekly - Publisher's Weekly
FYI: University of California is also publishing The Cigarette Papers, a collection of internal documents from cigarette manufacturer Brown & Williamson, which many are calling "the Pentagon Papers of tobacco." (May, $29.95 0-520-20572-3)
Booknews
Commissioned by Defense Secretary McNamara and classified as "Top Secret--Sensitive," the 7,000-page Pentagon Papers traced the US involvement in Vietnam from the 1940s through the late 1960s. In 1971, the New York Times published the study; the newspaper was subsequently sued by the Nixon administration, but the Supreme Court ruled in favor of the Times. Rudenstine (law, Yeshiva University) thoroughly analyzes the conflict, the litigation, and the significance of the decision. Annotation c. Book News, Inc., Portland, OR (booknews.com)
Anthony Marro
A rich, textured, balanced, and clear—headed recounting of one of the most important First Amendment pieces of our time.
—(Anthony Marro Columbia Journalism Review
Lewis
Fascinating.
The New York Times
Steve Weinberg
Told with more panache than a John Grisham novel. Though others have written books about the case, this is the best.
—(Steve Weinberg Newsday
Timothy Cook
A rare combination, painstakingly scholarly and also a page—turner.
Washington Post
Bill Wallace
A masterful examination of the inside political tactics and journalistic decision—making process involved in the case….He…has managed to turn what could have been a dry analysis into a vivid and suspenseful thriller.
San Francisco Chronicle
Robert D. Sack
Rudenstine's interest is legal as much as it is historical. Every argument, every submission, every opinion, is dissected and analyzed for its legal coherence, its strength and impact.
New York Law
Susan Sterett
A very fine research tradition in law and politics takes a leading Supreme Court case and tells its story, from the historical context out of which a case emerged to the perceptions of different actors involved to the trial and the final Supreme Court opinion. Studies such as these, including Richard Polenberg’s FIGHTING FAITHS, about free speech, Richard Kluger’s SIMPLE JUSTICE, concerning BROWN, Anthony Lewis’s GIDEON’S TRUMPET, concerning GIDEON V. WAINWRIGHT, and Marian Faux’s ROE V. WADE make accessible to a relatively wide reading public the compelling stories that are crucial to understanding meanings of Supreme Court cases. Whether cases are relatively well-planned elements of political strategies or something closer to happenstance, books such as these bring out politics. Because they do so by telling stories, they are particularly useful books for teaching. While I would recommend this book for anyone interested in the case, I will discuss it as a teaching tool, given the audience for this book review. Such studies allow discussion of cases as contextualized and political beyond the particular ideologies of Supreme Court justices. For students accustomed to thinking too much about Supreme Court doctrine, or too embedded in the tradition of law as something wholly apart from history, this perspective comes as a revelation. David Rudenstine’s study of the Pentagon Papers case fits within this fine tradition. It provides an excellent way to teach students about the constitutional questions of executive power, often very dry for students, in the context of gripping questions about freedom of the press. As part of telling this story, Rudenstine argues against the usual understanding of this case. Rudenstine argues that the Nixon Administration genuinely believed that publication would jeopardize national security (pp. 8-9). To recap the story briefly: the government commissioned a study of the history of the United States’s involvement in Vietnam. Robert McNamara commissioned a large number of scholars from different institutions to do the study. He commissioned the study out of a concern that the war in Vietnam was not winnable and its history should be documented (pp. 17-21). When it was complete, the study, which came to be called the Pentagon Papers, was 47 volumes, four of which were a diplomatic history that could have been useful in negotiations and that were treated at the time as highly sensitive (p. 27). Daniel Ellsberg, who had been a cold war intellectual and supportive of the war, had become opposed to the war. He believed that the public needed more information about the war. If the public had that information, more people would come to see how wrong the war was. In March of 1971 Ellsberg gave the papers to Neil Sheehan, a reporter from the NEW YORK TIMES. In June the TIMES began publishing the papers. The Nixon administration sought to enjoin publication and pursued the case in very short order . The WASHINGTON POST also received the Papers and decided to publish excerpts; it took much less time to decide in part because it saw publication as a way of competing with the TIMES (pp. 128-136). An injunction against publication would seem to violate the old common law understanding of what was at the core of freedom of the press: that the government was not to restrain potentially harmful speech or publication beforehand. The government tried to stop both newspapers from publishing; in very short order the cases were heard by federal district courts, Courts of Appeal and then the Supreme Court. The Supreme Court finally held that the Nixon administration could not stop the papers from being published, but in doing so some justices acknowledged that the government had some inherent powers not stated in the Constitution, particularly with regard to national security. The Pentagon Papers case has generally been understood to have been part of the Nixon administration’s obsession with secrecy and expansion of executive privilege. That the government would try to halt publication of political material challenged the heart of what is generally understood to be core first amendment doctrine. Political speech has long been considered the crucial part of what the first amendment protects; its expansion to pornography and commercial speech are part of the story of constitutional change. While it has been deeply contested what it means to say that Congress cannot make a law restricting freedom of the press, a prohibition on prior restraints has long seemed to be a taken for granted part of the protection of the press based on even the restrictive English common-law heritage. Furthermore, the Pentagon Papers, while an important synthesis of material, were dense and long, written in academic prose. They also were generally understood to be based on material that had been published at least as government documents. That the Nixon administration would try to suppress this material, then, seemed to be an outrageous and unjustified effort to expand executive power. The administration claimed national security as a reason to suppress the material; the explanation from paranoia would hold that that claim was one not even the administration believed. David Rudenstine has conducted extensive interviews and read through trial transcripts to address this prevailing understanding of the case. This richly textured book provides analysis of litigation choices and how those shaped the outcome, the problems of the arguments made in the cases, how the choice of advocates might have shaped the case, and a consideration of how and why judges ruled as they did. His discussion of different actors’ approaches would invite classroom discussion of different interpretations of what freedom of the press means. Rudenstine argues that, contrary to the prevailing wisdom, the administration very much believed that the Pentagon Papers posed a threat to national security. Furthermore, he argues that Nixon, a president who loathed the press, was initially unconcerned about the Pentagon Papers. He believed that as a history it addressed actions undertaken by the Kennedy and Johnson administrations and therefore could raise no problems for his administration. Let the Democrats worry about it. Rudenstine argues that Henry Kissinger persuaded the president that it was important to care about the Pentagon Papers and their publication. Kissinger played on Nixon’s dislike of the press. He also urged that it would jeopardize negotiations if countries who were intervening could not count on their interventions remaining unpublicized. Publicity of negotiating positions an aid would embarrass countries whose officials did not want to be seen to be taking sides. Kissinger convinced Nixon it was important to pursue an injunction against the press (pp. 66-77). Once convinced, Nixon pursued it wholeheartedly. The argument that the government truly believed that publication was dangerous for national security organizes Rudenstine’s discussion of the courtroom hearings. The government worked on a very tight timetable, which Rudenstine argues limited their ability to make their case. For example, in the district court case against the TIMES, the government did not initially cite any specific material that would threaten security; nor did the judge ask the government to do so (pp. 105-107). That in turn shaped the Supreme Court decision: some of the justices held not that the executive could gain a restraining order if it was justified on the evidence, but that in national security the government had the power without the courts’ evaluating evidence (pp. 314-320). Attorney General John Mitchell asked the Solicitor General Erwin Griswold to argue in the Court of Appeals only hours before the case was scheduled to be heard. Griswold initially protested that he could not as he had never even seen the Pentagon Papers (p.243). Because of the requirements of the classification system, all the material was classified, even though some of the documents consisted of already published news stories or public documents (p.30). Such broad classification made making the national security argument somewhat more difficult. Once it became clear the POST was also publishing the papers, the government had to pursue that newspaper as well. The government therefore was running a lawsuit in New York and one in Washington, D.C. Rudenstine argues that the Justice Department believed the danger posed to national security by publication, although Ellsberg had held back the four volumes of diplomatic history (pp. 84,86,89,95) that had seemed most sensitive. Furthermore, he argues that the freedom of press issue raised little problem for the Justice Department because no one had ever believed the press could publish anything it wanted to (p.86). Robert Mardian, the assistant attorney general who dealt with internal security, believed both that the simple fact of classification and that the TIMES had received stolen property meant that there could be no right to publish (p.81). Rudenstine discusses the perspectives of other participants as well. The TIMES relied on Alexander Bickel to argue its case. Bickel, a prominent first amendment scholar, spent his intellectual lifetime arguing against judicial activism and in favor of "the passive virtues." as a result, he argued that the executive could not suppress the publication of the Pentagon Papers without an authorizing statute from Congress, although in the Supreme Court he backed away from arguing that with such a statute a prior restraint was necessarily justified (pp. 103-104; 293). As Rudenstine points out, this approach is not the most protective approach possible for the press. In laying out these considerations, Rudenstine makes the possibility of lively classroom discussion of what freedom of the press means. Rudenstine provides a lucid explanation of the differences among the opinions of the justices once the case reaches the Supreme Court. He sketches how the particular decisions fit with the overall jurisprudence of the particular justice. He also draws together the complex decision, in which there was both a per curiam decision and nine separate opinions. Rudenstine concludes with a measured discussion of the effect of the publication of the papers. He argues that there is no evidence that their publication harmed national security, though he points out that it could still have seemed to be threatening before publication (pp. 326-328) although he also argues that it is not clear publication accomplished what Ellsberg wanted either: hastening the end of the war (pp. 329-330). He argues that it did increase the scrutiny of particular government officials, such as Robert McNamara (p. 332). When I have taught this case, I have found classes divided among those who believe that (to quote almost directly) publishing the papers was akin to giving the opposing team the game plan to those who take absolutist positions on free speech. Each group tends to believe that their perspective is a matter of opinion, each equally good. This book will cut across such disputes and allow a much richer and more informed discussion of executive power, freedom of the press, and the politics of legal decision making
Kirkus Reviews
Set to come out on the 25th anniversary of the New York Times's publication of the Pentagon Papers—the 7,000-page secret history of the government's Vietnam War decision-making commissioned by Robert S. McNamara in 1967—Rudenstine's book is a remarkable achievement.

Law professor Rudenstine (Benjamin N. Cardozo Law School) has mined the primary and secondary sources, interviewed three dozen important players, and unearthed new evidence. The result: a very readable political narrative with scholarly analysis of the landmark case. The excerpts and analyses of the papers that ran in the New York Times represented the largest unauthorized disclosure of classified documents in American history. The Nixon administration's effort to stop the Times (and later the Washington Post) marked the first time in American history that the government had sued to prevent newspapers from disclosing information for national security reasons. District Judge Murray Gurfein's order to cease publishing the material in question was the first time an American judge had taken such action against a newspaper. This substantive book's value lies in the breadth of the narrative, the sharpness of Rudenstine's analyses of the case's legal aspects, and the author's surprising but persuasively argued conclusion that the papers "contained information that could have seriously harmed national security if disclosed." The government was unable to convince a majority of the US Supreme Court of that fact. And, as Rudenstine points out, the newspapers did not publish anything that had a negative impact on peace talks or that compromised diplomatic initiatives outside Vietnam. The Supreme Court chose "to risk the dangers inherent in a freer press because the alternative resolution—enhancing government power to censor the press—was even more threatening to a stable and vital democracy."

Nothing less than the definitive account of the Pentagon Papers case.

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Product Details

  • ISBN-13: 9780520086722
  • Publisher: University of California Press
  • Publication date: 6/13/1996
  • Pages: 278
  • Product dimensions: 6.37 (w) x 9.22 (h) x 1.44 (d)

Meet the Author

David Rudenstine is the Dr. Herman George and Kate Kaiser Professor of Constitutional Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

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Read an Excerpt



Chapter One


McNamara's Study

On a wintry February day in 1968 Washington officials packed the ceremonial East Room of the White House to bid farewell to Robert S. McNamara, who was resigning as secretary of defense after seven years. Chief Justice Earl Warren, Senators Robert F. and Edward M. Kennedy, cabinet members, the White House staff, as well as scores of others listened to President Lyndon B. Johnson praise McNamara as a "brilliant and good man" and award him the Medal of Freedom, the highest award a president may give to a civilian. Johnson told the overflowing crowd that McNamara would be an outstanding president of the World Bank, and he predicted that "20 years from today some other President will stand here and say: `A revolution in the developing nations began,' once McNamara became the bank's leader. The audience stood and broke into a "ringing applause."(1)

McNamara was overwhelmed. Tears came to his eyes, and he was "choked with emotion" as he stood before so many whom he had known for so long. When the time came for him to speak, he couldn't. All he could do was tell those assemble: "I cannot find the words to express what lies in my heart and I guess I better respond on another occasion."(2) As Johnson watched his former defense secretary become uncharacteristically speechless, he must have felt confident that McNamara would remain loyally quiet and not publicly criticize the administration's Vietnam War policies once he left the government. As it turned out, Johnson's confidence was justified; McNamara did not speak up, at least not before 1995.(3)

Johnson was unaware, however, thatMcNamara had left behind at the Defense Department three dozen analysis who were writing a secret history of America's involvement in Vietnam. The study was not even half completed the day Johnson paid tribute to McNamara, and it was not obvious to those writing the history that it would ever be finished. But the massive 7,000-page project was completed within a year.

Johnson may have first learned about the Pentagon Papers study when he read the first reports of it in the New York Times in June 1971, nearly three years after he left the presidency. He was outraged by the disclosures and convinced that the Time's decision to publish the secret history meant the newspaper was out to destroy his reputation and the legacy of his presidency.(4)

* * * * *

To understand the sharp juxtaposition of feelings and attitudes just described, the disclosures of the Pentagon Papers study, as well as the Nixon administration's effort to suppress the study, we must begin at a much earlier point in time.

Five weeks after McNamara became president of the Ford Motor Company, where he had spent the previous fifteen years working his way up the corporate ladder, President-elect John F. Kennedy asked McNamara to become his secretary of defense. McNamara did not think he was qualified for the office, but he agreed to do it if Kennedy would agree that "he be left to run the department as he thought best and to appoint whomever he wanted," and that he be free of any obligation "to go to parties or be `a social secretary.'"(5) Kennedy agreed.

By early 1962 McNamara had emerged as the dominant policy strategist for Vietnam within the Kennedy administration.(6) Many factors combined to make this so. Because he regretted his "me-too role [that he played] in the Bay of Pigs debacle," McNamara was determined not to allow a similar mistake to happen to him again on any defense matter. And if Vietnam was becoming an international testing ground for the U.S. military, as it appeared to be, McNamara decided that he would not permit others to do his thinking for him. He was convinced that the survival of a noncommunist government in South Vietnam was vital to U.S. economic, political, and military interests. He believed that the entire Indochina peninsula would be at risk if South Vietnam fell to the communists. He also believed that the United States had to meet the communist challenge in Vietnam in order to deter the Soviet Union's premier, Nikita Khrushchev, who had stated bluntly his determination to challenge the United States at vital points throughout the world. With these concerns McNamara was determined to exercise an influential hand in shaping Vietnam policy. In the end he was so influential that the war in Vietnam eventually became known as "McNamara's war," which McNamara said he did not mind: "I'm proud to be associated with it."(7)

Throughout 1962 and 1963 McNamara was optimistic about the progress made in defeating communist forces in Vietnam. "Every qualitative measurement we have shows we're winning this war," he publicly reported after his first visit to Vietnam in 1962. During this period he favored increasing the number of U.S. military advisers in South Vietnam while continuing support for Ngo Dinh Diem's government. Following a trip to South Vietnam in March 1964 McNamara and General Maxwell D. Taylor, chairman of the Joint Chiefs of Staff, urged enlarging the U.S. commitment of aid to South Vietnam so that the South Vietnamese armed forces could be increased by 50,000. They also wanted the United States to provide greater budgetary and political support to the South Vietnamese government. About the same time, McNamara ordered Pentagon aides to identify bombing targets in North Vietnam. In late summer of 1964 McNamara was instrumental in persuading Congress to approve the Tonkin Gulf Resolution, which Presidents Johnson and Nixon both cited as legal authority for the use of U.S. military forces in the Vietnam War, absent a formal congressional declaration of war.(8)

In January 1965 McNamara urged Johnson to use American military forces in Vietnam to prevent the communists from taking over the south. After the Viet Cong assaulted American forces at the Pleiku air field in the Central Highlands in February McNamara urged immediate retaliatory air raids on North Vietnam targets. Under McNamara's supervision these sporadic raids gave way to systematic air attacks by the end of the month. In July 1965 McNamara supported Johnson's decision to send U.S. combat troops to South Vietnam. Throughout the fall the defense secretary orchestrated the buildup of American forces, which surpassed 200,000 by the end of the year. In November McNamara recommended a pause in the bombing, ostensibly to induce North Vietnam to accept political terms it had previously rejected. Johnson accepted the recommendation, but the pause failed to bring about any change of attitude in North Vietnam, and the war continued. During the next ten months McNamara pursued a strategy of gradually increasing U.S. military pressure on North Vietnam, on the assumption that the North would eventually capitulate and accept a political settlement.(9)

By the fall of 1966 McNamara's study of the data persuaded him that the North Vietnamese had increased their forces roughly in proportion to the increase in American forces. That meant that the United States would be unable to achieve decisive attrition by introducing more troops and that a standoff with larger forces on each side was in the making. Reports revealed that the extensive air war was ineffective in preventing North Vietnam from sending supplies and troops to the South. Evidence from the field indicated that the pacification programs in the southern countryside had not been a success. McNamara concluded that U.S. policy had failed and that it would continue to fail.(10)

As fall turned into winter, McNamara's understanding of his miscalculations deepened. He had underestimated the determination, tenacity, and resourcefulness of North Vietnam. He had misjudged the effectiveness of American military power in a rural society cries-crossed with tropical and treacherous terrain. He had overestimated popular support for the South Vietnamese government, exaggerated the capacity of programs to strengthen the government's popular base, and undervalued the degree to which the conflict in Vietnam resisted a military solution because it was caused primarily by political and economic considerations.

As McNamara came to accept that the war was unwinnable, other factors also began to affect him. He worried that the powerful political dissent the war had ignited within the United States was tearing the country apart. He was troubled that intellectuals and academics he respected opposed the war and that a few of his most trusted civilian aides—men like John T. McNaughton and Adam Yarmolinsky—were questioning the efficacy of the war's policy and aims. He was increasingly upset because some of his closest friends—such as Senator Robert Kennedy—were becoming some of the war's most public critics.(11)

As 1966 came to an end McNamara wanted Johnson to change his war policies. McNamara wanted to stabilize the U.S. air offensive at its existing level, because increasing the air raids would have little impact on the North Vietnamese and might lead to an open war with China. He wanted to limit American combat troops to about 500,000—well under the 700,000fighting force General William Westmoreland was planning. He wanted to strengthen the pacification program and coerce political reforms within the South Vietnam government. He wanted the administration to encourage a political settlement through another bombing halt and by giving the Viet Cong a voice in governing the South.(12)

As important as these proposed changes were, they were nonetheless limited. McNamara did not press for a unilateral military withdrawal, an unconditional cease fire, or even a substantial military pullout. Nor did he turn his back on the basic tenet that had guided him for years: that the primary aim of American foreign policy and military power was the containment of communism. Nevertheless, McNamara's shift was perceived as out of step with the administrations and President Johnson, Secretary of State Dean Rusk, national security adviser Walt W. Rostow, and the Joint Chiefs of Staff increasingly isolated him.(13)

It was while McNamara was concluding that the administration's policies had failed in the fall of 1966 that he first considered commissioning a study that would trace the history of U.S. involvement in Vietnam. It is likely that the idea for such a study occurred to him during a visit to the Kennedy Institute of Politics at Harvard University in November 1966. At a meeting with faculty—who were generally opposed to the administration's policies—the discussion focused on how and why the United States had become involved in Vietnam, what the United States had accomplished in Vietnam, and what opportunities the United States had missed and what mistakes it had made in Vietnam. Someone apparently suggested that McNamara try to obtain answers to those and other questions and that he might use as a model the kind of analysis (dealing with a totally different subject) prepared a few years earlier by Richard E. Neustadt. Neustadt had studied the dispute between the United States and Britain in 1961-1962—a dispute that arose when the Kennedy administration canceled the Skybolt missile, which the British had expected to use as a nuclear deterrent.(14)

McNamara was attracted to the idea of a study that explained why the United States was engaged in an Indochina war. It might help explain why the administration's Vietnam policy had failed, and it might help justify a change in the administration's policies. But McNamara delayed in taking any action to get the study off the ground. It was not until the spring of 1967 that McNamara told John McNaughton, his assistant secretary for international security affairs, to ask Neustadt if he would undertake such a study. Neustadt told McNaughton that he might be willing; but within a few weeks Neustadt was notified that there would be no study.(15)

By April 1967 McNamara was distraught. He had been pressing Johnson to move away from a policy aimed at winning the war in favor of trying to convince North Vietnam that it was in no better position to achieve victory than the United States. But McNamara made no headway. Johnson, with the support of others within the administration, was unwilling to change his policy midstream. As a result McNamara found himself increasingly marginalized and was tempted to quit. But he feared his resignation would leave unopposed those within the administration who would "unleash the war" with terrible consequences. He felt trapped. The strain was intense and visible. Rumors spread throughout Washington that McNamara was "deeply troubled," "coming apart," or "close to an emotional breakdown."(16)

In June 1967 McNamara finally commissioned the historical study that he had been considering for over a half year. Morton H. Halperin, one of McNamara's top aides, first learned about this decision when he met with McNaughton and Colonel Robert Guard, a military aide to McNamara. Guard told Halperin that McNamara wanted an "encyclopedic history of the Vietnam War" written within the department, and he wanted Halperin tO consider how the project should be carried out. Halperin prepared a memorandum that proposed that McNamara establish a task force attached to the secretary's office, identified the kinds of documents that should be collected and how they might be organized, and urged that he, Halperin, direct the enterprise.(17)

McNamara approved Halperin's plan. He also agreed that Halperin should have general supervisory responsibilities for the study, but he did not want Halperin to devote all his time on it, because he needed Halperin for other matters. Someone else should direct the study on a daily basis. McNamara suggested that the Harvard University historian Ernest R. May be asked, but May turned it down (although he did eventually participate in the venture).(18) Halperin then suggested Leslie H. Gelb. Gelb was working with Halperin on the policy planning staff and had been a senate aide before he joined the Pentagon's Office of International Security Affairs in 1966.(19) McNamara gave his approval, and Gelb accepted the position.

* * * * *

The precise reasons McNamara commissioned the Pentagon Papers remain uncertain and continue to be a subject of controversy. This is in large part true because McNamara did not commit his own thoughts to paper, and none of his aides—McNaughton, Halperin, Gelb, and Paul C. Warnke—have made public any notes, diaries, or memoranda commenting on McNamara's motives. McNamara did not discuss the project with Gelb or with any members of the staff. The one person at the Defense Department with whom he did plan and discuss the matter was John McNaughton, who died in a plane crash a month after McNamara commissioned the project.

McNamara has insisted that he authorized the study to preserve for scholars the government documents that chronicled the key decisions resulting in the United States's involvement in an Asian land war. He has said that he became convinced that the written record would eventually be lost or destroyed.(20) There is no reason to doubt McNamara's basic contention. Government documents do get "lost" in government files, are selectively destroyed, and are sometimes removed by officials who consider them their personal property. In fact the project staff for the Pentagon Papers encountered exactly such problems: they were far less successful in locating key documents prepared during the Truman and Eisenhower administrations than in collecting documents from later periods.(21)

McNamara's own conduct at the time supported his claim that he wanted to preserve the record for scholars. He told McNaughton that he wanted nothing more to do with the study once it was begun, because he did not want to taint the effort in any way or provide any basis for the suspicion that he had influenced the selection of materials. More important, McNamara complied with his own directions. Once he authorized the study, the staff was unable to receive any guidance from him or any description of what he wanted.(22) McNamara even refused to meet or discuss the project with the staff, including Gelb. Nor is there any evidence that McNamara reviewed the contents of the study as it was prepared. He kept his hands completely off the project and limited his comments to informal remarks such as "let the chips fall as they may."(23)

Neither President Johnson nor Secretary of State Rusk accepted McNamara's claims that he commissioned the study merely to preserve the historical record. When Johnson first learned of the massive study in June 1971 Newsweek reported that Johnson told friends he believed the "ghostly hand of Robert Kennedy is on the Pentagon study. Bobby indeed may well have inspired the report."(24) Johnson believed that Kennedy "needed an issue for his intended [presidential] challenge" in 1968. Johnson did not think Kennedy could find any weakness in his "record on civil rights, race, health, education, environment or anything else. He pinned his hopes on Vietnam, and McNamara was a Kennedy man."(25) Business Week had a similar report: "Johnson has passed on to newsmen—not for quotation or even indirect attribution to him—his suspicion that McNamara ordered the Vietnam study to help elect Robert Kennedy president in 1968."(26)

Dean Rusk shared Johnson's view. According to his authorized biographer, Thomas J. Schoenbaum, Rusk "became convinced the study was intended to help Robert Kennedy in his political campaign against the President."(27) Rusk has pointed to several factors to support his suspicions not only that McNamara was hiding the study from him and the president but that he commissioned the study to help Kennedy. McNamara did not have the study prepared by the historians at the Defense Department who normally were responsible for historical studies. The analysts who did the study were promised anonymity. The study was considered complete and final without it being circulated for review, comment, or approval to top echelon Pentagon officials or high ranking officials within the State Department, the CIA, the National Security Agency, the National Security Council, or the White House. Two analysts who worked on the study confided to Rusk that they had the impression they were writing campaign documents for Kennedy's use in the 1968 Democratic party presidential nomination.(28)

Rusk has conceded that McNamara asked him for State Department cooperation in a document collection project. But Rusk considered McNamara's description of the project to be so different from the completed study that, as he stated in his autobiography, "I never knew about the project." Indeed, Rusk felt betrayed not only by McNamara but by his own State Department colleagues: "this forty-four-volume study was prepared under my very nose by, among others, colleagues working twenty yards down the hall from me," and they never disclosed it. When the study was completed a copy was delivered to Under Secretary of State Nicholas de B. Katzenbach just before Rusk left office, and still no one mentioned the study's existence to him.(29)

Johnson's and Rusk's suspicions were not unreasonable. McNamara did not ask Johnson for permission to do the study, and he did not inform the president or Walt Rostow, the president's national security adviser.(30) McNamara did tell Rusk, but Rusk felt that McNamara seriously misled him as to its scope.(31) McNamara had directed the project's staff to "keep it a secret. Moreover, as David Halberstam has written, McNamara and Robert Kennedy "had remained close friends and in 1966 they began to feed each other's dissent, McNamara confirming to Kennedy that the war was not going well, Kennedy confirming McNamara's impressions of what the war was doing to this country."(32) In fact nine days after the New York Times began publishing excerpts from the Pentagon Papers in June 1971, the reporter Tom Braden wrote a news column based on a conversation with McNamara. Braden stated in part: "It was Robert Kennedy who encouraged McNamara to leave behind him an objective record of the decision-making process which led his country from a game of bluff against a lot of little men in black pajamas to a devastating and terrible war.(33)

Johnson's and Rusk's charges deeply angered McNamara, and he has refused to accept the idea that either Johnson or Rusk could have believed him to have been so devious and disloyal.(34) Several of McNamara's former government associates-Halperin, Warnke, and Katzenbach-supported McNamara's view that there was no basis for Johnson's and Rusk's suspicions, Katzenbach "sing so far as to characterize them as "nuts."(35) In addition to pointing out that the suspicions were based entirely on unconvincing evidence these former McNamara associates have also offered other plausible reasons for Johnson's and Rusk's suspiciousness. Johnson, for example, was haunted by the Kennedys, and when Robert Kennedy criticized the administration's war policies, McNamara's friendship with Kennedy caused Johnson to distrust McNamara's loyalty. Rusk also had a complicated relationship with the Kennedys. Although he had served as President Kennedy's Secretary of State, he was not (in contrast to McNamara) part of Kennedy's inner circle. Rusk's situation changed significantly when Johnson took office, and Rusk became a Johnson confidant, especially as opposition to the war mounted. Once Kennedy emerged as a threat to Johnson's presidency, Rusk viewed McNamara as a Kennedy supporter and distrusted him.

Although Johnson's and Rusk's suspicions are understandable, it is highly unlikely that McNamara commissioned the Pentagon Papers study to help Kennedy challenge Johnson for the presidency. Kennedy had ample information to criticize Johnson's Vietnam policies without needing the secretary of defense to authorize an exhaustive documentary history. McNamara extended the deadline for the study three times, and it was completed after McNamara had left the administration, after Kennedy had been assassinated, and just a few days before Richard Nixon was sworn in as president. If McNamara had intended the study to further Kennedy's presidential ambitions, he would have insisted that it be completed before the presidential primaries began. Finally, everything we know of how the study was actually conducted—including McNamara's initial choice of two Harvard scholars to direct the project and his total lack of day-to-day involvement—fails to support Johnson's and Rusk's suspicions.

McNamara's reasons for commissioning the study almost certainly changed over time. At first, McNamara probably viewed the project as a means of changing the administration's war policy. By the time he told McNaughton to assemble a staff for the project, however, he was already giving serious thought to leaving the administration. He had even had a conversation with the president during which Johnson asked him what he wanted to do once he left government. McNamara responded that he would like to head the World Bank, and Johnson said he would help him become the bank's president. Thus, by the time McNamara had commissioned the study, he knew that he had lost influence with Johnson, that he was not going to be able to change the administration's course in Vietnam, and that it was only a matter of time before he would be out of the government.(36)

Although there is no reason to doubt that McNamara wanted to preserve the historical record for scholars, as he has insisted, it is likely that McNamara's reasons for having the study done we e more complex than that. McNamara was the war minister who "may have done more than any other individual to mold U.S. policy in Vietnam," and who many considered the "principal architect of the American intervention."(37) And yet McNamara commissioned a study that he must have known would treat him harshly. Beyond his desire to preserve the historical record, his decision to commission the Pentagon Papers study must have been pushed by something deeper, more profound, and inevitably obscure. One can only speculate about what those deeper, unexpressed feelings might have been. But they have a character that resembles an act of confession—an indictment as a means of absolution. After all, McNamara not only fashioned the policies that resulted in an intractable war that caused the death of tens of thousands but he continued to implement those policies—resulting in many more death—long after he had concluded that the administration's course of action in Vietnam had failed and would continue to fail.

As a result it is difficult to believe that McNamara's decision to commission the study was solely a scholarly one. Rather, it would seem that McNamara's decision-was also balanced with feelings of responsibility, regret, guilt, and sorrow. At least that is what Nicholas de B. Katzenbach thought: "I think what happened was that the Vietnam War was one of the worst experiences that McNamara ever had. He saw everything he had done in the Pentagon going down the drain. He spent money on Vietnam and had no way of getting out of Vietnam. . . . He realty did not know how this terrible mistake had been made. Where did he go wrong? I think he was assuaging a guilt feeling that he had about Vietnam when he directed the study done. If you know Bob McNamara that is a perfectly good reason."(33) * * * * *

McNamara had originally conceived of the Pentagon Papers as resulting in a collection of documents that would require a professional staff of six and take approximately three months to complete. He emphasized that he merely wanted the "record assembled" and indexed so that information would be readily retrievable.(39) About a month after the project began, however, Halperin and Gelb recommended that McNamara's modest conception of the study be substantially transformed. After they had reviewed some documents they concluded that the materials "shed interesting light on the current" situation, which could best be understood if placed in a historical context. They recommended not only collecting documents but also writing narrative histories on selected topics based solely on the documentary materials. They proposed about thirty studies; the final report followed this proposal quite closely;(40)

McNamara has refused to take responsibility for approving the historical studies and has insisted he does not recall authorizing them. He has claimed that he was surprised the final report contained these studies, that he never intended such studies, and that the project's staff never notified him they were preparing them.(41) "Total baloney," says Gelb, who has claimed that he and-Halperin submitted written memoranda that outlined the historical essays they intended to prepare. "Literally everything that happened, every decision that I had to make, I would do a memo and send it up to McNamara and get an answer back."(42) McNamara has maintained that he never read Gelb's memoranda, that he never knew the staff was preparing historical studies, and that if he gave his approval to the studies, he gave it without knowing what he was approving. McNamara has contended that he was far too busy with other, more important matters to give his attention to the study once he commissioned it.(43) Halperin has supported McNamara's position: "I don't think he looked at" the memoranda.(44)

Halperin and Gelb probably would not have had interpretative essays prepared unless they believed McNamara had authorized them. It is also unlikely that McNamara gave only his nominal approval to the essays—that is, that he did not know what he was actually approving. He paid too much attention to detail to have allowed that to happen. Also, McNamara probably would not have approved additional staff or extensions for the project without being told that both were required to write the historical essays. What is a puzzle is why McNamara has continued to insist he was unaware of the interpretative essays. Perhaps Gelb put his finger on the reason when he speculated that including the essays in the study ultimately made McNamara feel he had in some sense betrayed Johnson and Rusk.(45)

* * * * *

Gelb and his staff, who had a suite of offices within the secretary of defense's office, had exceptional access to material. As Gelb has stated, the staff had "total access" to McNamara's and McNaughton's files, and this also gave them access to memoranda from the Joint Chiefs of Staff, to a "vast array of tightly held memos" by White House and State Department principals, and to "routine and special CIA studies." The staff also gained "full access" to the State Department historical files and to "what seemed to be a thorough collection of [State Department] staff papers and studies." Gelb made a personal "arrangement with the CIA" that permitted him to get material upon request. Disregarding McNamara's direction, Gelb also obtained material from "several members of the White House staff." Altogether, the volume of material obtained was enormous, filling thirty to forty cabinets.(46)

As bountiful as this material was, there were gaps. The staff did not have access to records of White House meetings, White House "`cover memos' (the memos which McGeorge Bundy and Walt Rostow, etc. put on top of external memos, informing the President what the external memorandum meant, giving opinions and recommendations)," and telephone conversations. Nor did the task force have a full set of the position taken by the different military services prior to the formal position taken by the Joint Chiefs of Staff, or to the "back channel" sables sent to and from the Joint Chiefs and General Westmoreland in Vietnam.(47)

The professional staff was composed of young, bright, well-educated individuals "with significant experience of Vietnam or of the foreign policy-making process." They were drawn from the mid-level ranks of the Pentagon, State Department, and military services; from "think tanks" such as RAPID and the Institute for Defense Analysis; and from universities, some of whose faculty acted as consultants.(48) In looking back on the thirty-six so-called Pentagon historians who wrote the studies former Deputy Secretary of State Katzenbach has observed that the group did in fact fulfill McNamara's hopes: he wanted "to put together a team of knowledgeable people, knowledgeable enough to write about it, but not people who had had a lot of responsibilities with respect to Vietnam."(49) Staff members were promised anonymity when recruited so they would feel free to make candid judgments in writing the case studies.

Gelb has conceded that he and the other writers of the histories had their "prejudices and axes to grind, and these shine through clearly at times [even though the group] tried . . . to suppress and compensate for them."(50) But he has taken strong exception to the criticism that the study was the work of doves: "We were not a flock of doves working our vengeance on the Vietnam War."(51)

Gelb had a frustrating time getting the project completed. The staff was "borrowed" or "loaned" from other parts of the government; consequently, few members stayed long enough to complete a particular study. Frequent staff rotation meant that Gelb had to devote much of his own time recruiting new people.(52) It also meant, as Gelb has written, that "almost all the studies had several authors, each heir dutifully trying to pick up the threads of his predecessor."(53) The result was, as one student thoroughly familiar with the study has noted, that the "process gave the history a fragmented character and it does not reflect consistent themes throughout, as would a history written by one author or a group of authors who shared a similar overview of events."(54)

The only exception to this were the four volumes that traced the diplomatic history of the war from 1964 to 1968. These volumes—which totaled over eight hundred pages of analysis and documents—were compiled by Gelb and Richard Moorsteen. Because these volumes were prepared on the assumption that they might be used as background papers should negotiations develop, and because they concerned unresolved and controversial issues, they were treated "as especially sensitive, with only three or four people having access to them."(55) In fact Gelb considered the four volumes so sensitive that he failed to mention them in his transmittal letter that accompanied the completed study, which he sent to Defense Secretary Clark Clifford: he stated that the total number of volumes was forty-three instead of forty-seven.(56)

The staff feared the project would be terminated and its work destroyed if news of its existence spread too far within the government. McNamara had contributed to this atmosphere when he enjoined the task force to keep the project's existence secret.(57) But the staff's reasons for keeping the study secret differed from McNamara's. McNamara was worried about his relationships with Johnson, Rusk, and Rostow. In contrast the staff thought the substance of the study posed a political threat to the administration and its policies. Thus, staff members worried whether they would be allowed to finish the study and whether any copies of it would survive if it were completed. Halperin felt confident that if Rostow or Johnson learned about the project, they would terminate it.(58)

* * * * *

When completed in early 1969 the study's 7,000 pages were bound into forty-seven volumes; 3,000 pages were devoted to historical studies, which Gelb described as "stick[ing], by and large, to the documents and do not tend to be analytical,"(59) and 4,000 pages contained government documents. Each of these studies, which Gelb thought varied considerably in "quality [and] style," contained a "summary and analysis" written by Gelb and attempting to "capture the main themes and facts of the monographs—and to make some judgments and speculations which may or may not appear in the text itself."(60) Each study also contained a chronology that highlighted "each important event or action in the monograph by means of date, description, and documentary source."(61)

The first several volumes of the study focused on the years between 1940 and 1960, which in Gelb's view contained "many interesting tidbits" but which were mainly "nonstartling."(62) These volumes reviewed U.S. policy toward Indochina during and immediately following World War II. They covered the refusal by the United States to extend assistance to Ho Chi Minh despite his requests. They also make clear the fact that Ho was acknowledged to be a genuine nationalist, as well as a communist, who was intent on maintaining his independence from the Soviet Union and China. These volumes also examined the United States's involvement in the Franco-Viet Minh War between 1950 and 1954, the Geneva Conference of 1954, and the origins of insurgency from 1594 to 1960.

Most of the study was devoted to the years following the election of President Kennedy in 1960. Thus, there were detailed reviews of the overthrow of Ngo Dinh Diem; the Tonkin Gulf episode; the decision to begin and expand the air war against North Vietnam; the decision to deploy U.S. ground forces in Vietnam; the buildup of those forces; the strategy for the use of those troops; and the history of the war's diplomacy from 1964 to 1968.

The four volumes tracing the war's diplomacy were organized around thirteen separate initiatives or contacts that occurred during the period in question. For each episode a brief summary and analysis was followed by a lengthy chronology that recounted the events of each episode on an almost day-to-day basis.(63) The volumes described the evolution of American policies toward a negotiated settlement, the episodic diplomatic contacts between the United States and North Vietnam, and the unsuccessful efforts of numerous third parties to bring the embattled antagonists to the peace table. They candidly assessed the Johnson administration's response to domestic and international pressures for negotiations, the level of the administration's commitment to a negotiated settlement, and the reasons the various peace initiatives failed.

The Pentagon Papers had its obvious shortcomings. It had important gaps because of McNamara's direction that the staff not attempt to collect White House documents or conduct interviews, and because the CIA as well as other branches of the government withheld documents. The historical studies, meanwhile, were clearly not a complete history of U.S. involvement in Vietnam. They were based only on the documents, and as Gelb has written, they did not create "so much a documentary history, as a history based solely on documents."(64) In addition the authors largely neglected the war's political consequences within the United States. Thus, the range of topics was limited, and even those topics addressed were dealt with in a relatively limited way, without the kind of thorough, exhaustive assessment that an independent historian might provide.

The four volumes chronicling the diplomatic history of the war from 1964 to 1968 also contained deficiencies. They were based almost exclusively on cable traffic drawn from State Department files and therefore represented only a fraction of the overall record. Moreover, cable traffic tended to be concerned mainly-with operations and rarely included historical and political background pertinent to an issue or an analysis of the reasons behind major policy decisions.(65) The absence of White House files meant that the study shed little light on the thinking of President Johnson and his top advisers. The study generally presented the peace moves in a vacuum; only infrequently were they discussed in the larger context of simultaneous strategic decisions or military and political developments. The so-called negotiating volumes also focused heavily on the United States, providing only glimpses into the policies and methods of operation of the many other actors.(66)

More important, for those who had followed the war closely the papers revealed "relatively few new facts" and served "primarily to confirm private suspicions and publicly expressed doubts."(67) this was also true for the negotiating volumes, which contained "no real bombshells." A careful review of these materials reveals that most of the events described in them had been previously covered in newspaper reports and books.(68)

* * * * *

In spite of all these shortcomings the Pentagon Papers study remains an impressive work. It contains thousands of pages of complete government documents, as opposed to selective quotations, which give it the kind of undeniable authenticity and reliability that only primary sources can provide. If it is in many respects incomplete, it is nonetheless a formidable compilation—especially if we take into account the extraordinary circumstances under which the project was carried out. The war was still raging; the political situation was highly volatile; and while the study was intended to be a "historical" record, it chronicles events that had contemporary significance, were highly charged, and were still in a state of rapid, unpredictable movement.

As one researcher at the time summarized it:

The Pentagon's study, United States-Vietnam Relations 1945-1967, provided such a mass of significant data as to ensure its enduring usefulness to anyone with a serious interest in the United States, long involvement in Indochina. This enormous collection of documents and commentary undoubtedly deepens our understanding of the political premises and strategic objectives that have underlain the Indochina, and especially the Vietnam, policies of four American administrations. And, on the military level, these papers marshal a large body of important documentation and analysis bearing on discussions and decisions within several administrations concerning U.S. efforts to achieve these objectives.(69)

Given all these factors, Gelb and Halperin believed they were obligated to classify the study "top secret-sensitive."(70) This was hardly surprising, given that the executive order establishing the classification system broadly defined the term "top secret" as appropriate for information that "could result in exceptionally grave damage to the Nation" if improperly disclosed. As examples of "grave damage," the order included information "leading to a definite break in diplomatic relations affecting the defense of the United States, an armed attack against the United States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense."(71) The order did not state that injury had to occur within a specified amount of time after disclosure of top secret information. Nor did it require that the disclosure of information result with some degree of certainty in a specific form of harm. In other words the executive order did not restrict the top secret designation to information that would definitely result in an immediate or near-certain break in diplomatic relations of the United States or irreparably harm the defense of the United States or result in an immediate armed attack on the United States or compromise military, defense, intelligence, or scientific matters affecting the national defense. In short the order was broad in scope and imposed very little in the way of defined standards with respect to possible or probable effects.

Furthermore, under the classification rules that existed at the time, Gelb and Halperin were required to classify the entire study top secret, even if some of the material within it was classified at a lower level—such as secret or confidential—or not classified at all.(72) This rule often led to results that were anomalous and that could well appear to be the product of sheer mindlessness or obsessive secrecy. The Pentagon Papers were no exception. Thus, articles from the New York Times and public presidential addresses, included in the study, were classified top secret along with diplomatic cables, military plans, and intelligence information. That was the rule, and Gelb and Halperin followed it.

Halperin and Gelb used the term "sensitive" in the classification designation because they wanted to keep the very existence of the study as confidential as possible. The term "sensitive" was not authorized by statute or executive order, but it was often used within the Pentagon. It signaled that the information contained in the document might cause bureaucratic and political embarrassment, apart from any effect that its disclosure might have on national security. Halperin and Gelb feared that Johnson or Rostow would destroy the study if they learned of it, and they did not want that to happen.

* * * * *

Gelb declared the project completed on January 15, 1969, only five days before Richard Nixon took the presidential oath. But the study still needed to be typed and reproduced. Because Gelb, Halperin, and Warnke were concerned about the actual survival of the study, they shipped twenty-eight completed volumes to a government-approved classified storage safe at the RAND Corporation in Washington, D.C.(73) Also, Gelb decided to stay at the Defense Department through the change of administrations in order to shepherd the study through to conclusion. By late April Gelb felt sufficiently comfortable that the final phase of the work would go smoothly; he resigned from the government and joined the Brookings Institute.

Shortly thereafter, and after consulting with McNamara, Gelb made a list for the distribution of the report. Although it is not known for certain, Melvin R. Laird, Nixon's defense secretary, likely approved the list. Only fifteen copies of the report were made, and, of that, five copies were placed in Laird's safe at the Pentagon. Of the ten distributed copies, only one went to an official of the Nixon administration—Henry Kissinger, Nixon's national security adviser. The remaining nine went to the Kennedy and Johnson libraries and seven former Johnson officials. McNamara, Clifford, and Paul H. Nitze, former deputy secretary of defense, each received one. A copy was placed with the private papers of Katzenbach and former Assistant Secretary of State William P. Bundy, both of whose papers were stored at the State Department. Warnke claimed a copy, and Gelb and Halperin jointly claimed the last copy. Not surprisingly, no copy of the report was sent to Walt Rostow, Dean:Rusk, or Johnson himself. No announcement describing the study was circulated within the government.

Warnke, Gelb, and Halperin so feared that the study might be destroyed that they deposited their own two copies in the Washington offices of the RAND Corporation. These copies were marked as under the collective control of Gelb, Halperin, and Warnke, who wished to have it appear as if the report belonged to them personally. Under a special arrangement made with Henry Rowen, RAND's president, the top secret study was not "logged into the Rand `Top Secret Control' system."(74) Although the trio probably had no legal basis for claiming any kind of personal ownership of the classified study, what they did was not unusual among former government officials, who frequently took classified documents with them when they left office.

Gelb, Halperin, and Warnke were determined to do what they could to protect the report; as Gelb later remembered, "I think Paul, Mort, and I were all concerned that the papers survived."(75) Indeed, Gelb was so worried that the study might be destroyed that he went so far as to ask his friend, Richard Ullman, a Princeton professor, to inquire about the possibility of storing a set of the volumes in a secure safe at the university. Ullman made some inquiries and reported to Gelb that it was not possible.(76)

In addition to worrying about the survival of the study, Gelb, Halperin, and Warnke worried about a possible leak. In their view the Papers contained an extraordinary amount of information that was properly classified top secret, that could seriously harm the national security if prematurely disclosed, and that was politically sensitive. They therefore agreed that they would not permit anyone to have access to the study they stored at RAND unless two out of the three of them so agreed.(77)

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Table of Contents

Acknowledgments
Introduction: A Reconsideration 1
1 McNamara's Study 15
2 Daniel Ellsberg 33
3 The New York Times Publishes 48
4 Nixon's Turnabout 66
5 The Justice Department's Recommendation 77
6 The Times is Restrained 99
7 On the Eve of the Times Trial 110
8 Inside the White House, Part 1 118
9 The Washington Post Publishes 125
10 The Friday Hearing: The Public Session 139
11 The Friday Hearing: The Closed Session 153
12 Gurfein's Decision 169
13 The Post is Restrained 185
14 On the Eve of the Post's Trial 193
15 Gesell's Decision 204
16 The Second Circuit 217
17 The D.C. Circuit 239
18 Inside the White House, Part 2 252
19 The Supreme Court Takes the Case 259
20 The Briefs 266
21 The Argument 283
22 The Decision 301
23 The Impact of the Disclosures 323
24 Criminal Investigations and Impeachable Offenses 339
25 The Supreme Court's Decision and Democracy 349
Notes 357
Selected Bibliography 395
Interviews 403
Index 405
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