Forty-two Years After the Pentagon Papers the Song Remains the Same

Dannel Ellsberg and Anthony Russo at a press conference during their trial for leaking the Pentagon Papers.

Today’s most talked about news items—the massive spying scandals unearthed by National Security Agency (NSA) contractor and whistle blower  Edward Snowden and bravely brought to daylight by Glenn Greenwald who has been monitoring abuses by the national security establishment for years and the Court Martial of Bradley Manning for dumping documents on the wars in Iraq and Afghanistan to Wikileaks—seem like déjà vu to those who recall the tumultuous events surrounding the Pentagaon Papers more than forty years ago.

On June 13, 1971 The New York Times began publishing The Pentagon Papers, a top secret history of the military and political involvement of the highest echelons of the U. S. Government in the Vietnam War. 

The study had been commissioned by Secretary of Defense Robert McNamara and was completed in 1968.  The document had been obtained by Daniel Ellsberg, a former military analyst for the RAND Corporation think tank who had been involved in the original study.  He hoped to expose how the leaders of the government in successive administrations had systematically lied to the American people about both their intentions in Vietnam and about the actual conduct of the war. 

Among the many disclosures that shocked the notation was the Lyndon Johnson had made the decision to widen U.S. involvement with the introduction of combat units on the ground well before a heralded “consultation” with his senior advisors.  Johnson was also shown to be committed to bombing North Vietnam even as he was running for election in 1964 on a promise of seeking “no wider war.”  The documents also revealed the long secret war in Cambodia. 

The Nixon Administration reacted with a combination of horror and fury.  Attorney General John Mitchell immediately sought a restraining order against the Times to prevent them from continuing publication citing the 1917 Espionage Act which made it a crime to be in possession of classified documents illegally obtained “…which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated.” 

The Times was forced to suspend publication as the case was expedited through the Federal Courts.  A few days later another restraining order was issued against the Washington Post, which had also been provided the text by Ellsberg and had begun running its own series. 

As the case was being reviewed, Senator Mike Gravel, Democrat of Alaska entered 1400 pages of the Pentagon Papers into the Congressional Record, which could not be restrained by the courts and put the material in a public form which could be quoted without fear of prosecution. 

The next day, on June 30 a deeply divided court ruled 6–3 that the injunctions were unconstitutional prior restraint and the government failed to meet the heavy burden of proof required.  Each of the nine justices wrote decisions agreeing or dissenting opinions on various parts of the ruling. 

It was less than the clear-cut victory for freedom of the press that the Times and Post hoped for, but it did affirm a broad interpretation of the First Amendment and allowed them to resume publication of the papers. 

Meanwhile the Justice Department had warned/threatened publishing houses against issuing the papers as a book.  Fearful, not one major commercial publisher would touch it.  

Gravel, a Unitarian Universalist, suggested that Beacon Press, publishing arm of the Unitarian Universalist Association (UUA) take it up.  UUA President Robert West agreed setting off two and a half years of harassment, intimidation, and court action against the publisher and the UUA by the government.  Despite threats and even a personal phone call from Nixon the company rushed to put out the full Mike Gravel Edition of the Pentagon Papers in October. 

After publication the Justice department subpoenaed all of the UUA bank records for four and a half months, including checks from individual members.  That action was stopped on appeal, then started again, and finally ended, but the government tied the UUA up in court for two and a half years and cost hundreds of thousands of dollars in legal fees. 

Both West and Beacon Press Director Gobin Stair were publicly named to be likely to be indicted on espionage or even treason charges and both were called to testify in the criminal trial of Ellsberg and his co-defendant Anthony Russo, an associate who had helped with the copying.

At various times government agents hinted that the UUA and each member congregation might lose non-profit tax exempt status and that UUA might even be placed on the notorious Attorney General’s List of Subversive Organizations. 

Ellsberg and Russo had been charged under the Espionage Act and with a raft of other charges including theft and conspiracy, carrying a total maximum sentence of 115 years.  The trial finally got underway in January of 1973 in the Boston courtroom of U.S. District Judge William Matthew Byrne, Jr. 

During the trial a number of “gross improprieties” by the government were revealed.  Not the least of which was the August 1971 break-in of the office of Dr. Lewis Fielding, a psychiatrist who had treated Ellsberg.  This operation was conducted by G. G. Gordon Liddy, H. Howard Hunt and three Cubans at the direction of Nixon aid John Ehrlichman—the first operation of the infamous Plumber’s Unit that would soon be swept up in Watergate. 

It was also revealed that Judge Byrne personally met twice with Ehrlichman, who offered him directorship of the FBI. Although Byrne said he refused to consider the offer while the Ellsberg case was pending, even agreeing to meet with Ehrlichman during the case raised red flags. 

The government was accused of illegally obtaining evidence and of monitoring the defense team.  When the government tried to claim it had “lost” wire tap records on Ellseberg the exasperated Judge Byrne declared a mistrial and said “The totality of the circumstances of this case which I have only briefly sketched offend a sense of justice. The bizarre events have incurably infected the prosecution of this case.”

Nixon’s paranoia, which ultimately resulted in his resignation in disgrace over the Watergate scandal, can be traced to this case.  Aids Ehrlichman, H. R. Halderman, Richard Kleindienst, and John Dean were forced to resign when the Fielding burglary was disclosed in the course of the trial.  Egil Krogh and Charles Colson were convicted and sent to prison for their roles in supervising the break in. 

So what about today?  Well unfortunately intimidation of the press has become routine—and successful.  The New York Times voluntarily withheld for months documents proving the President George W. Bush had planned from the beginning to use the September 11, 2010 attacks as a pretext on which invade Iraq until after the election of Barack Obama. 

Julian Assange, the Australian Internet activist and proprietor of Wikileaks, was hounded by American authorities, questionably charged with sexual assault in Sweden and had to go into hiding to prevent kidnapping or arrest by American authorities.  He has been living in the Ecuadorian embassy in London, which has offered him asylum, since last June.  At one point British authorities threatened to storm the embassy to arrest him

The Obama Administration, which has been much more aggressive pursuing and charging leakers than any before it, also rolled out threats to prosecute news outlets under the same Espionage Act used against the Times, Post, and Beacon Press.

Daniel Ellsberg himself, now widely regarded as a hero for standing up to Nixon, has said that under the current administration he would likely be locked up for life under Obama.

The freak out about the NSA leaks is even more hysterical.  Snowden has “gone to ground” in Hong Kong amid fears that he could be kidnapped or even assassinated.  Although no charges have yet been formally drawn, the administration has loudly talked about aiding the enemy and even possible treason charges.  The admittedly often hysterical Senator Rand Paul has expressed fears that Snowden could be named an enemy combatant and taken out by a drone attack.  Far fetched, but strangely it no longer seems beyond the limits of possibility.

Hard line Republican Representative Peter King  of New York went on CNN to tell Anderson Cooper that reporters disclosing classified documents should be prosecuted. 

Meanwhile readers of this blog, which has undoubtedly triggered whatever algorithms are used by the NSA supper sophisticated snooping programs to flag possible dangerous threats, and those who click on links here from Facebook or Google Plus have to look over their shoulders and assume that Big Brother really is watching.