Posted In: Blog/News on January 18, 2018
The top-secret report which became known as the Pentagon Papers, officially titled United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, is an internal analysis of documentation about the origins and conduct of the Vietnam War from 1947 to the end of the Johnson Administration, prepared over the course of three years under the supervision of three anti-war DOD officials. It ultimately consisted of some 3,000 pages of analysis and 4,000 pages of documentation. It was not peer reviewed or circulated outside of DOD.
Publication of the first article by the New York Times on June 13, 1971 caught the Nixon Administration completely by surprise. The Papers contained nothing adverse about the Nixon Administration itself, since the study concluded with the Johnson Administration, but there were three principal causes of concern:
- Leak of Top Secret Documents: Full copies of documents discussed in the analysis section were attached in the last four volumes for ease of reference. It was not just the leak of the documents themselves, which was bad enough; now any foreign power intercepting the encrypted transmittal of such documents would have access to the original and could break our codes. The White House, having been told by the FBI that a set of the Papers had also been delivered to the Soviet Embassy, had to assume the worst: that access to the leaked documents meant that our codes had been compromised.
- Keeping Secrets: When the Times, and then other newspapers, published the Pentagon Papers, the United States was engaged in secret negotiations with three totalitarian regimes (China, Russia and North Vietnam), with whom secrecy was paramount. How could they trust us to keep things confidential if we did not respond in a proactive manner in the face of such a massive leak?
- Undercutting Nixon’s Negotiating Position: Nixon was elected on a pledge to end the Vietnam War. The North Vietnamese had proved intransigent, and Nixon needed time to end the war in a way he considered honorable. The leak of a study seeming to undercut the rationale and legitimacy of our Vietnam involvement significantly weakened his negotiating position – both within and without our country.
The Nixon administration had no idea of the magnitude of the actual leak. However, given the scope of the study, its attached documentation, and the wartime circumstances under which it had occurred, it felt it had to take the aggressive step of stopping further publication. This action set up a classic battle involving “prior restraint”: Under what circumstances can the government infringe upon the freedom of the press guarantee of our First Amendment?
The Post presents a dramatization of the decision-making process within the Washington Post, principally under the leadership of its owner, Katharine Graham (played by Marilyn Streep), and its executive editor, Ben Bradlee (played by Tom Hanks). While technically excellent and entertaining as drama, there are a number of instances where the screenplay is not factually correct.
In short, the movie presents a highly distorted account of a significant historic event.
There are two major threshold issues:
- The Pentagon Papers’ content is totally mischaracterized throughout the movie. The Papers did not show that every President since Truman knew that the war could not be won, and had deliberately hidden that from the American people.
- The New York Times, and not the Washington Post, was the leader –and therefore the proper dramatic hero in — undertaking the risks and uncertainty of publication of portions of this top-secret study.
There also are two secondary issues:
- The Post was hardly the largely local institution, and Katharine Graham was hardly the tentative, uncertain female who finally found her nerve, as portrayed in the movie. Further, given her stature and inheritance, she is hardly a role model for women struggling to find their place in society.
- Nixon was not at all at risk from the Papers’ publication, because the study ended with the Johnson Administration. Nixon was doing what he thought necessary as President to respond to this massive theft and leak of government secrets.
- Mischaracterization of the Pentagon Papers’ Content
The study was undertaken in 1967 at the behest of Defense Secretary Robert McNamara. It was produced under the supervision and control of three senior anti-war officials within the Department of Defense (Paul Warnke, Mort Halperin, and Les Gelb). It was a secret study, whose very undertaking – as well as all of the content of its conclusions — was kept from officials at both the Johnson White House and its Department of State.
The study was declassified by the National Archives in 2011, and can be viewed in its entirety on their website: https://www.archives.gov/research/pentagon-papers.
While few will be inclined to undertake a review of all forty-seven volumes, there is a way to produce an overall summary. The table of contents identifies locations of periodic executive summaries throughout the text, each authored by Les Gelb. Once printed out and assembled, they constitute about four hundred pages – and provide a very workable summary of the entire study.
The study was never peer-reviewed and did not represent the official views of the Department of Defense, let alone of the Johnson administration.
Even as the uncirculated view of several officials, the study does not show, as claimed in the movie, that every President beginning with Truman lied to the American people about getting us into (and expanding our involvement in) a war that we could never win. Instead, it is an analysis of existing documentation, in an attempt to show the thinking of decision-makers over the course of two decades.
The Encyclopedia Britannica’s entry for the Pentagon Papers study, for example, summarizes its content as follows (https://www.britannica.com/topic/Pentagon-Papers ):
The Pentagon Papers revealed that the Harry S. Truman administration gave military aid to France in its colonial war against the communist-led Viet Minh, thus directly involving the United States in Vietnam; that in 1954 Pres. Dwight D. Eisenhower decided to prevent a communist takeover of South Vietnam and to undermine the new communist regime of North Vietnam; that Pres. John F. Kennedy transformed the policy of “limited-risk gamble” that he had inherited into a policy of “broad commitment”; that Pres. Lyndon B. Johnson intensified covert warfare against North Vietnam and began planning to wage overt war in 1964, a full year before the depth of U.S. involvement was publicly revealed; and that Johnson ordered the bombing of North Vietnam in 1965 despite the judgment of the U.S. intelligence community that it would not cause the North Vietnamese to cease their support of the Viet Cong insurgency in South Vietnam.
While not made explicit in the above summary, it is generally agreed that President Johnson vastly increased our involvement and misled the American public into believing the North Vietnam had shelled one of our ships, thereby justifying Congress’ Gulf of Tonkin resolution that “approved” the expansion of our involvement in the War.
Thus, Lyndon Johnson could be seen as the principal culprit in vastly expanding the War, but the movie obfuscates that by deliberately spreading the blame across at least four presidencies. Yet, the actions by other Presidents are never characterized in the Papers as lies to the American people, as implied throughout the movie.
There is a school of thought that the War was not an appropriate use of U.S. power, was not properly pursued, and constituted a failure of our foreign policy, but this is not an explicit conclusion of the Papers, as uniformly portrayed.
- The New York Times Played the Lead Role
The timing of events surrounding the Papers’ publication clearly indicate that the Times played the lead role. Here is a summary of the relevant dates and events.
- New York Times: Published its first installment on June 13, 1971, with subsequent installments on each of the next two days, before Judge Gurfein issued his Temporary Restraining Order issued on June 15th. As the movie admits, the Times had studied the Papers for three months prior to deciding to publish.
- Washington Post: Published its only detailed article on June 18, 1971.
- On June 19th, Judge Gurfein ruled for the press and dissolved his TRO. Virtually every court ruled similarly, but postponed its ruling to allow the government to appeal. Only DC District Judge Gesell refused to stay publication – and he did so in the case against the Post, so they were not at all exposed to the same degree of legal risk as was the Times.
- Boston Globe: June 22nd
- Chicago Sun-Times: June 23rd
- Other papers: June 25th
- Supreme Court granted certiorari on June 25th, held a rare Saturday hearing on June 26th, and issued its opinion on June 30th (a 6-3 vote upholding the newspapers’ right to publish).
The day-by-day unfolding of the battle, which further confirms the Times’ lead role, is more fully described in the Appendix.
What is noteworthy is that not only is the Times the first to publish, but also the paper taking the far larger risk by the very act of being the first to publish.
In addition, the movie blurs the distinction between issue of prior restraint, which is the heart of the case which the Times won, with the propriety of criminal prosecution for revealing government secrets, which remains very much the law of the land. This latter issue is never even alluded to in the movie.
The movie also erroneously presents two secondary issues:
- By mid-1971, Katharine Graham was hardly the hesitant and uncertain female portrayed by Meryl Streep.
Philip Graham died on August 4, 1963, so Kay Graham had been the Post’s sole owner for almost eight years before the issue of publication arose. Moreover, the Washington Post Company was both prominent and profitable – and had been for years. It was second to no other in its coverage of politicians and political affairs.
The Post had come to prominence under Mrs. Graham’s father, Eugene Meyer; this continued under her late husband’s stewardship. Here is an excerpt from the Times’ own obituary for Philip Graham:
That picture changed in 1954, when the late Col. Robert R. McCormick, who controlled The Times-Herald, agreed to sell his paper in Washington to Mr. Meyer. The deal gave the merged paper a monopoly in the morning field.
After that, the Post boomed. Its circulation, which now is over 400,000 daily and 480,000 on Sundays, went up sharply. It built up an editorial policy that is considered to be one of the most thoughtful in American journalism, and a news staff that is one of the most respected in Washington.
During this period, Mr. Graham not only handled the business side of the newspaper’s operations, but was the guiding spirit of the paper’s editorial policy as well. This policy leaned toward the Democrats, although the paper did not endorse either Presidential candidate in 1960.
In 1961, the Post company, under Mr. Graham’s leadership, purchased the controlling stock interest in Newsweek from the Vincent Astor Foundation. When the deal was closed, Mr. Graham wrote a personal check for $2,000,000, as a down payment on the $8,985,000 purchase price.
In the following year the Washington Post Company again expanded into the magazine field by buying Art News, the most widely read monthly in the art field, and Portfolio, a hard-cover art quarterly, from Albert M. Frankfurter.
Moreover, Katharine Graham was, and had been for some time, the single most influential woman in our Nation’s capital. Her strong will and determination was well known and respected by 1971. Her home on R Street was ground zero for the liberal social circles of Georgetown, and it was under her leadership that the Washington Post Company had expanded into other areas of broadcasting.
No doubt the Post was still second overall to the Times, but not in national political coverage or in influence within the Nation’s capital.
Only somewhat separately, as a woman clearly born with a silver spoon in her mouth, the sole daughter of one of the nation’s wealthiest and most influential men, inheritor of the Post and Newsweek, and doyen of the Georgetown social set, Mrs. Graham is hardly an appropriate role model for women dreaming of coming into their own positions of leadership in a man’s world. Mrs. Graham’s circumstances would be hard for anyone else to emulate, reminding one of J. Paul Getty’s formula for success: “Rise early, work hard, strike oil.”
- The Nixon Administration was not put into an embarrassing political position by the Papers’ publication, because their analysis ended with President Johnson.
Nixon was not a part of the Papers’ study. He came into office when there were already 536,000 US troops in Vietnam, and had campaigned on ending the War.
It is true that the Post detested Nixon and fought him every step of the way, but his actions in seeking to prevent publication of a stolen top-secret report were done only to protect the secrecy of documents produced by prior administrations.
NB: While a member of Nixon’s White House staff for five years, I had no personal involvement with the Papers or their release. All of the above information is drawn from public sources, principally:
- Bradlee, Ben. A Good Life, Newspapering and Other Adventures (Simon & Schuster, 1995)
- Graham, Katharine. Personal History (Alfred Knopf, 1997)
- Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers (Viking Penguin, 2002)
- United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, 1969.
Detailed Pentagon Papers Chronology
January 21, 1961:
Robert McNamara is appointed Secretary of Defense by President Kennedy.
Paul Warnke becomes DOD general counsel and then Assistant Secretary for International Security Affairs, a position he holds until a month into the Nixon administration, thence remaining a DOD consultant until July, 1969. He is the highest ranking official to openly criticize our conduct of the Vietnam War.
Leslie Gelb, Executive Assistant to Senator Jacob Javits (R-NY), becomes director of Policy Planning and Arms Control for International Security Affairs at DOD.
June 17, 1967:
McNamara authorizes creation of the Vietnam Study Task Force to write “an encyclopedic history of the Vietnam War”. Morton Halperin is given general supervisory responsibilities, with day-to-day direction assigned to Leslie Gelb. At no point is the existence of this study shared with the Johnson White House or with Secretary of State Dean Rusk. It is, and remains, the work product of three high ranking anti-war officials at DOD.
Late Summer, 1967:
Daniel Ellsberg is invited by Halperin and Gelb to help staff the project. By December, he completes a 350-page draft report of JFK’s Vietnam Policy during 1961.
February 29, 1968:
Clark Clifford is appointed Secretary of Defense by President Johnson, replacing McNamara.
Nixon beats Humphrey and is elected President, but Republicans fail to gain control of either House of Congress. He ran on a law and order platform, along with his promise to end the Vietnam War.
Henry Rowan, Rand’s President, is contacted by Halperin and asked if Rand would be willing to store a large number of documents utilized in a DOD study of the Vietnam War.
December 18, 1968:
Gelb, Halperin and Warnke prepare a memo which governs the arrangements and access to the papers to be stored at Rand. Importantly, it requires two of them to consent before anyone else is to be given access.
January 15, 1969:
Gelb submits the Report (titled: United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense) letter to Clifford. Historians incorrectly conclude from this letter that all 47 volumes of the Pentagon Papers were completed by this date. Gelb only referenced 43 in his transmittal, and it appears only the first 37 had been finalized. The last nine volumes continued to be worked on, with copies made and distributed at various times, such that (presumably after the first 37 volumes), no two copies are the same. Ultimately, there were 2 million words, 3,000 pages of analysis and 4,000 pages of referenced documents. The public statements and internal documents from Roosevelt to Kennedy constitute the 13 volumes of Part V. Only 15 copies were originally made (according to a 6/16/71 newspaper article, which Laird confirmed): 2 copies held by RAND; 2 in the National Archives; 2 at the State Department; 1 for new Defense Secretary Clark Clifford; 1 for Sec. McNamara; and 7 others at the Department of Defense.
January 20, 1969:
President Nixon is inaugurated as 37th U.S. President. The US has 536,000 troops in Vietnam.
January 21, 1969:
Melvin Laird is appointed Secretary of Defense by President Nixon, replacing Clifford.
38 volumes of the papers are deposited with RAND Corporation in Washington D.C. by Gelb and Warnke. These are not entered into the Rand-DC security system, as required of DOD contractors.
Kissinger announces that Halperin, his former colleague at Harvard in the 1960s, will join the NSC staff.
February 15, 1969:
Warnke resigns as Assistant Secretary of Defense for International Security Affairs, joining Clifford’s law firm. He stays as DOD consultant through July 7, 1971.
Ellsberg, now working at Rand, requests and receives a copy of the Papers.
March 4, 1969:
Ellsberg transports eight of the 37 volumes from Rand-DC to RAND-West Coast offices in Santa Monica, California. They are not entered into Rand’s security system.
April 18, 1969:
Gelb resigns from DOD to become Senior Fellow at Brookings, but remains as DOD consultant until June 30th.
July 14, 1969:
Gelb writes Rowan, on Brookings letterhead, suggesting that Rand store two full 47 volume sets of the Report.
August 29, 1969:
Ellsberg transports ten more of the 37 volumes from Rand-DC to Rand-West Coast. Again, they are not entered into Rand’s security system.
Halperin resigns from the NSC and joins the Brookings Institution.
September 19, 1969:
The first full 47 volume study given to Rand-DC. It is not entered into their security system.
September, October, and November, 1969:
Ellsberg and his RAND colleague Anthony Russo copy the Papers in offices of Lynda Sinay. Ellsberg’s children often aid in the copying. Ellsberg leaves RAND offices at 11:30 p.m. with a briefcase full of documents, photocopies them, and replaces them in the RAND security safe early each morning.
October 3, 1969:
A second full 47 volume set is delivered to Rand-West Coast. It also is not entered into their security system.
October 12, 1969:
Ellsberg and several RAND colleagues write a letter to the Washington Post opposing the administration’s Vietnam policies and statements.
Ellsberg delivers a portion of the copied Papers to Senator William Fulbright, Chairman of the Senate Foreign Relations Committee, but he refrains from using them unless and until they are officially released to him by DOD. Fulbright writes to Laird several times, requesting these documents.
December 20, 1969:
Laird refuses to release the Papers to Fulbright.
Ellsberg leaves RAND for MIT, and is assigned to an office directly across from war architect William McGeorge Bundy, formerly of the CIA. Ellsberg befriends Professors Noam Chomsky and Howard Zinn, with whom he shares the Papers and who will eventually compose a volume of analytical essays to accompany their publication.
April 27, 1970:
Rand (Rowen) is told by the FBI that Ellsberg is copying classified materials.
18 volumes of the Papers, which Ellsberg had transported to Rand-West Coast, are entered into its security system following his departure for MIT.
May 13, 1970:
Ellsberg testifies before the Fulbright and the Senate Foreign Relations Committee, but does not disclose information in or the existence of the Papers.
Ellsberg discloses his analysis, in light of his information, in an essay “Escalating in a Quagmire” presented at a conference of the Political Science Association.
Ellsberg meets with Kissinger to discuss his concerns. Kissinger offers him a position as an NSC advisor, which he refuses.
Ellsberg publicly confronts Kissinger at an MIT conference about casualty reports.
March 2, 1971:
Ellsberg meets with New York Times reporter Neil Sheehan at Sheehan’s home in DC to discuss making a copy available.
March 7, 1971:
Boston Globe carries Washington correspondent Thomas Oliphant’s story headlined “Only 3 Have Read Secret Indochina Report; All Urge Pullout,” referring to Halperin, Gelb and Ellsberg. This is first public reporting that the Report exists.
March 12, 1971:
Ellsberg meets again with Sheehan and is insistent that the Times commit to printing substantial portions of the Report.
March 21, 1971:
Sheehan checks into the Treadway Motel in Harvard Square, Cambridge, MA. Ellsberg leads him to an apartment where he is given access to a copy of the Papers. Sheehan has them photocopied in Boston and returns to Washington.
March 28, 1971:
Sheehan’s essay about the possibility of war crimes trials for American officials is published in the edition of the Times Book Review.
March 31, 1971:
Ellsberg again visits Fulbright, urging use of documents, which Fulbright again declines without their receipt through official channels.
April 5, 1971:
Sheehan and Times editor Gerald Gold rent rooms at the Jefferson Hotel in Washington, five blocks from the White House, and begin reading the documents and planning their release by the Times.
The headquarters for Times’ “Project X” move to five rooms on the 11th Floor of the New York Hilton, near Times Square. Sheehan is joined by Hedrick Smith, Ned Kenworthy and Fox Butterfield.
Ellsberg gives copies of a portion of the Papers to Rep. Pete McCloskey, but they are never used.
Times General Counsel James Goodale presses for publication against the advice of its outside counsel Lord, Day & Lord, whose senior partner had written the classification regulation that the Times would be violating. Goodale pushed for a one-day special supplement, publishing all they had so as to avoid any prior restraint on subsequent publication, but this approach was rejected by Times’ editors.
Top Times editor James Reston, who had regretted the soft coverage of the Bay of Pigs invasion, promised that if the Times refused to print, he would do so in the small newspaper he owned, the Vineyard Gazette.
June 11, 1971:
Times Publisher Arthur Ochs “Punch” Sulzberger gives final approval for the Papers article and leaves for a London vacation.
June 12, 1971:
Tricia Nixon marries Edward Cox in a White House ceremony
James Reston dictates his Sunday column, “The McNamara Papers,” over the phone for publication from his mountain home in Vermont.
June 13, 1971:
The first story appears in the Sunday Times, with a 24-point type headline “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement,” under Sheehan’s by-line. Ellsberg is not informed in advance of this publication.
This first article focused on the Tonkin Gulf incident of August 1964. It describes how the U.S. conducted extensive actions, causing the South Vietnamese to raid Northern targets with the express purpose of provoking a response that would be used to justify greater U.S. participation in the war.
June 14, 1971:
The second installment of the Papers series is published by the Times.
It focused on the February 1965 decision to bomb North Vietnam, describing how the last stage of planning was initiated on the day Johnson was elected despite is campaign promises not to escalate the military action. The story revealed how some aides felt that a strong show of force would be necessary to prevent South Vietnam from collapsing, but also feared that a strong retaliation would be equally dangerous. To prevent collapse, they committed to support Saigon. The article describes the decision process that led to the bombing campaign.
Attorney General John Mitchell telegrams Times publisher Sulzberger, threatening Espionage Act prosecution if the Times does not stop publication on the ground that it would cause “irreparable injury to the United States.”
James Goodale (as counsel to the Times) seeks the aid of Yale Law Professor Alex Bickel and First Amendment litigator Floyd Abrams.
Murray Marder, diplomatic correspondent for the Washington Post receives a 200-page excerpt from the Papers from an unknown source in Boston, but the Times publishes the same content in the next day’s installment.
June 15, 1971:
The third installment is published by the Times.
It describes the decision to commit ground troops, which was made on April 1, 1965, two months after the bombing campaign. It began with 3,500 Marines, and then 18,000-20,000 ground troops; the report describes how by June, 200,000 troops had been requested by General Westmoreland over Ambassador Maxwell Taylor’s objections. Johnson approved their deployment on July 17.
Bickel argues the case against injunction in the federal district court in Manhattan before Judge Murray Gurfein. Gurfein, who is hearing his first case as a judge, grants a temporary restraining order barring any future publication, pending a full hearing on the merits of the case.
DOJ announces that it will investigate criminal penalties in association with the leak and the publication.
Secretary of State William Rogers blames the Times’ disclosures for harming U.S. relations with its allies.
June 16, 1971:
The Times ceases publication, running instead the headline: “Judge, at Request of U.S., Halts Times Vietnam Series Four Days Pending Injunction.”
Ellsberg offers the Papers to the three television networks, but all refuse, citing FCC license vulnerability.
Ben Bagdikian, assistant managing editor of the Post, who had been studying media at RAND during the same time Ellsberg was there, contacted him and arranged to pick up copies of the Papers.
A Post article lists the locations of all 15 copies of Papers, “FBI Checking All Having Access to Known 15 Copies of Viet Study.” Laird privately confirms the articles’ accuracy.
June 17, 1971:
Bagdikian arrives at the home of Ben Bradlee, and with a gathered team of reporters and editors, dissects the papers, seeking to write a story the following day. Teams of reporters work feverishly. Publisher Katharine Graham approves publication over the telephone during a party being held at her home, despite strong objection by counsel (Bill Roger’s law firm). In the midst of the discussions, Bradlee called his best friend, Edward Bennett Williams, who gave the opposite advice (and whose firm soon replaced Roger’s as Post counsel).
The Times releases to the Justice Department a list of documents in its possession, but not the documents themselves, Judge Gurfein rejects the government’s request for the actual copies.
The FBI later reports to the White House that a copy of the Papers was delivered to the Soviet Embassy on this date. The importance is not whether this turned out to be true or not; it’s that this is what the White House was told.
June 18, 1971:
The Post publishes its story “Documents Reveal U.S. Effort In ‘54 to Delay Viet Election” by Chalmers Roberts. Roberts, who had personally attended the 1954 Geneva Conference, was able to report that the decision to cancel the elections in South Vietnam scheduled for 1956 was entirely the decision of Diem, though the U.S. had pushed for delay. The story also showed that a 1954 defense estimate suggested that the war could be won with seven divisions, but that by 1969 the total troop commitment was more than half a million troops (nine divisions).
DOJ immediately sought a restraining order and permanent injunction against the Post. DC District Judge Gerhard Gesell, who had himself been a reporter before becoming a judge, refused to grant even a temporary restraining order (becoming the only one of 29 judges to so refuse).
Bickel argues before Judge Gurfein that the Post‘s decision to publish is an undue hardship on the Times. The restraining order is not lifted.
June 19, 1971:
Gurfein rules in favor of the newspapers against the government and denies the publication injunction.
Judge Irving Kaufman of the Second Circuit immediately blocks publication during judicial review of Gurfein’s decision.
The D.C. Circuit Court of Appeals orders Judge Gesell to hold a hearing on the government’s motion against the Post, and restrained publishing until that hearing.
June 20, 1971:
Boston Globe reporter Thomas Oliphant contacts Ellsberg and, in consultation with editor Thomas Winship from his Vermont vacation home, agrees to publish the Papers.
June 21, 1971:
In the Times’ case, the Second Circuit extends the restraining order and rules for an en banc hearing.
In the Post case, Judge Gesell still refuses the restraining order after holding the hearing. The Circuit Court granted a stay for an en banc appeal. Solicitor General Griswold is scheduled to argue the case before the D.C. Circuit.
The Globe receives the Papers, and has six hours to prepare them for publication. Matt Storin (who would later become editor of the paper), leads the team of staff members who are processing the documents and writing the story.
June 22, 1971:
The Globe publishes “Secret Pentagon Documents Bare JFK Role in Vietnam War,” which details Kennedy’s direct approval for covert military operations, and Johnson’s turn to Vietnamization.
DOJ immediately seeks a restraining order against the Globe, which is granted, and the documents are ordered to be impounded by the court. In response, Winship moves the document to a locker in Logan Airport.
June 23, 1971:
In Washington, the D.C. Circuit court rules in favor of the Post‘s right to publish, but continues the temporary restraining order to give leave for appeal to the Supreme Court.
In New York, the Second Circuit rules that the Times could resume publication only of materials determined by the Government not to be dangerous to national security, and orders Gurfein to hold hearings to determine which parts were publishable. Both parties appeal. In Boston, Judge Anthony Julian amends his order and allows the papers to be locked in a safe at the First National Bank of Boston with access only by the Globe‘s attorney.
In Los Angeles, a federal grand jury is convened to hear charges on the criminal aspect of the leak.
The Chicago Sun-Times begins publishing its own account of the Papers, but DOJ does not move to prevent it.
June 24, 1971:
Several other newspapers across the country begin publication, but no DOJ action follows.
June 25, 1971:
The Supreme Court grants certiorari on both Times and Post cases, on a 5-4 vote. Justices Hugo Black, William Brennan, William Douglas, and Thurgood Marshall dissent.
The FBI informs White House of report that a copy of the Papers had been delivered to the Soviet Embassy on June 17th.
June 26, 1971:
In a rare Saturday hearing, oral Arguments are held in the Supreme Court. The government’s proposal for in camera arguments is rejected by a vote of 6-3. Alexander Bickel, James Goodale, and Floyd Abrams represent the Times; William Glendon of Bill Rogers’ firm represents the Post, and Solicitor General Erwin Griswold represents the Government.
In Los Angeles, a warrant is issued for Ellsberg’s arrest. Ellsberg’s attorneys announce he will surrender on Monday in Boston.
The St. Louis Post-Dispatch comes under a restraining order for its publication of the Papers.
June 28, 1971:
Ellsberg surrenders to the U.S. Attorney in Boston, and is charged with theft and unauthorized possession of classified documents. [NB: Not for leaking them to the Times.] He is released on $500,000 bail. A superseding indictment is issued in December.
Congress receives its copies of the Papers, which are immediately locked away.
June 29, 1971:
Anti-war activist, Alaska Senator Mike Gravel, attempts to read the Papers into the Senate record, beginning at 5pm, as part of his filibuster of the draft, but is denied by a parliamentary procedure calling for a quorum (which could not be assembled). Later that evening, he calls a hearing of his Public Buildings and Grounds Subcommittee and begins to read them into the record, eventually breaking down. He submits the remaining portion into the record as part of the proceeding. He subsequently arranges for publication by Beacon Press, a non-profit book publisher owned by the Unitarian Universalist Association. Gravel’s aide, Leonard Rodberg, was subpoenaed to appear before a grand jury convened to investigate the release of the report. Gravel intervened to suppress the subpoena on the basis of the Constitution’s speech and debate clause. In a landmark decision, the Supreme Court upheld the subpoena [Gravel v U.S. 408 U.S. 606 (1972), decided June 29, 1972], but the grand jury did not take further action. See also “How the Pentagon Papers Came to be Published by the Beacon Press: A Remarkable Story Told by Whistleblower Daniel Ellsberg, Dem Presidential Candidate Mike Gravel and Unitarian Leader Robert West.” Democracy Now, July 2, 2007 (http://www.democracynow.org/2007/7/2/how_the_pentagon_papers_came_to )
June 30, 1971:
The Supreme Court allows publication on a 6-3 vote. In a one page, per curiam opinion, it upholds the Times’ and Post’s right to publish. The Globe and Post-Dispatch‘s restraining orders are dissolved. [New York Times Co. v. United States (403 U.S. 713)]. The movie’s quote of Justice Black (“The press was to serve the governed, not the governors.”) is from his concurring opinion (joined by Justice Douglas), rather than majority of the Court.
Ellsberg is formally indicted in Los Angeles on two counts of theft and espionage.