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State secrets more than meet the eye when officials leak them

During the various battles over Wikileaks and Edward Snowden, there have been frequent references to a previous dispute involving the Pentagon Papers. Since it has been more than 40 years since those papers were disclosed, I thought it might be useful for those born after 1971 to know what came out of the Pentagon Papers fight.

Before leaving office as defense secretary in 1967, and believing that lessons should be learned from the Vietnam war, Robert McNamara arranged for a history of the war to be compiled, including many secret documents. It was delivered to his successor in 47 volumes. Fifteen copies were produced. One of those who worked on the history was defense analyst Daniel Ellsberg, who believed that knowledge of the history, with its deceptions, manipulation, and crimes, would help turn the public against the war. He photocopied the entire study and gave it to the New York Times, which began publishing a ten-day series of articles and documents about it on June 13, 1971.

The Nixon administration went to court in a dramatic 17-day effort. It obtained a temporary court order to halt the Times series while it tried to permanently prevent publication and regain the papers. While the Times was stymied, the Washington Post obtained some of the papers and began publishing reports, only to be stopped by another court order. As the court battle unfolded, at least nine newspapers and the 11-paper Knight chain took up the disclosures.

During the court battles, these were some of the things we learned:

1. Many of the classified secrets were already public. At a June 21 court hearing, as the government named items in the papers that should not be disclosed, time after time reporters passed notes to defense attorneys giving page numbers in publically available publications where the same information could be found.

2. High officials, always so outraged by leaks of classified information, routinely leaked classified information. A June 17 affidavit sworn by Max Frankel of the Times described the way President Kennedy leaked information from diplomatic discussions in order to portray himself as standing up to the Soviets. President Johnson did the same, and Secretary of State Dean Rusk was the source of information for Frankel “that Laos is not worth the life of a single Kansas farm boy and that the SEATO treaty, which he [would] later invoke so elaborately in defense of the intervention in Vietnam, was a useless instrument …” In another case, Frankel said, “We have printed official explanations of why American intelligence gathering was delayed while the Russians moved missiles to the Suez Canal last year.” Pentagon officials regularly leaked classified information: “The Navy uses secret information to run down the weaponry of the Air Force. The Army passes on secret information to prove its superiority to the Marine Corps.” The day before Frankel executed his affidavit, the Times published a front page story based on leaked information from Nixon administration officials about the ability of the Saigon regime to resist attacks in 1972 after U.S. withdrawals. In some cases, secrets were created for the specific purpose of leaking them! “I know how strange all this must sound,” Frankel said in the affidavit.

3. Leaks to the press are a legitimate official action. Theodore Sorenson, President Kennedy’s White House lawyer, filed an affidavit saying that U.S. government policy objectives had sometimes been advanced through leaks by top officials.

4. Most secret classifications are unwarranted. Erwin Griswold, who represented Nixon in trying to halt the disclosures in the Supreme Court, later said that only five percent of the Pentagon Papers merited being classified in the first place. Air Force security expert William Florence said only one percent of all classified material should be secret.

Fortunately, the U.S. Supreme Court ruled against stopping the disclosures. Justice Hugo Black wrote: “And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

During this epic battle, I was in the Army in Germany. After the court ruled against the Nixon administration, incredibly, Stars and Stripes – the official Army newspaper – began printing the Times series in “the belief that our readers are entitled to a comprehensive account of what the Pentagon study on Vietnam is all about.” That took courage.

Dennis Myers is an award winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.

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