Gerhard Gesell Appendix 5 – Pentagon PapersCatherine Nugent2022-04-19T11:22:34-04:00
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The Pentagon Papers case was really two cases proceeding through two Circuits toward a
final ruling by the Supreme Court in June 1971. The New York Times, and The Washington Post,
close behind, had portions of the papers and were proceeding to publish a series. The Department
of Justice sought to enjoin publication. In New York a brand new judge, Judge Gurfine, sitting in
motions, had the application for a temporary restraining order aimed at the Times, and I was
randomly assigned the case in the District Court in D.C. in which the United States was seeking a
temporary restraining order aimed at The Washington Post “off the wheel” by our random selection
The complaint against the Post named the paper and about eight top managers and newspaper
reporters, including Kay Graham and Chalmers Roberts. During the following days I held court
often to meet new developments with the constant pressure of publication deadlines on the one hand
and the effort of the Department to block whatever was going to come out each day. There was no
time to write. Rulings were oral and, of necessity, almost immediate. At every stage, without fail,
I refused to enjoin the Post and refused even short “stays” of an hour or two as appeals followed.
Every other Court enjoined publication for brief intervals. (The U.S. District Court for the Southern
District of New York, both circuit courts and the Supreme Court.)
Judge Gurfine issued a temporary restraining order after calling me and learning that I was
going to do the opposite. When the ten decisions of the Supreme Court Justices came down, I had
no complaints! The only point of these notes is to mention events not found in my papers to
illustrate the extreme tactics employed by the Nixon Administration to prevent publication. A
Solicitor General Griswold has recently (1991) revealed that even he was misled into
making false representations to the Court of Appeals for the D.C. Circuit and the U.S. Supreme
deliberate program of deception, misrepresentation and meanness was used to sway the result.1
Having gone through it and the earlier encounters with Kleindienst during the student riots, when
Watergate came along the excesses then revealed seemed almost normal.
I denied the TRO and refused a stay. Almost immediately the Court of Appeals sent the
matter back to me for further consideration and stopped the Post’s presses. This was on a Friday
[Saturday a.m.] and I was directed to act by 5:00 p.m. on Monday. The courthouse was closed that
weekend for some repairs, and I asked counsel to come to my house to arrange the Monday hearing.
Government lawyers came in force and prepared. The Post had a lawyer from New York who
seemed somewhat bewildered but ably assisted by a bright younger man who was far more aware
of the issues.
We got off to a rocky start. Assistant Attorney General Mardian, who headed the government
team, had persuaded me it would be necessary to hold some of the Monday hearing in camera
because of the sensitive security issues supposedly present. At the outset he said, “Of course, it will
not be proper for any of the defendants to be present.” I was flabbergasted. When I expressed
surprise he indicated his position had been cleared at the highest level. I replied that as far as I was
concerned the United States of America was not Russia and that I would dismiss the complaint
unless his orders were rescinded. I told him to use the telephone in my upstairs study. He made a
call, I presumed to the White House, and said the defendants could attend when he came down. To
focus the issues I suggested that the government should present its ten most sensitive examples at
the closed hearing to demonstrate why prepublication restrictions were necessary. This was agreed
and a set of the papers was left with me at my request as the lawyers left.
In a few minutes, while I was thumbing through the papers, there was a sharp knock on the
front door. Opening the door I found three large men in military uniform with white bands across
their chests and side arms who said they had come for the papers. I said no. They insisted, saying
I had no security. I was angry and told them to buzz off or stand around outside, that I had security
because the papers would be hidden under a sofa pillow. They left. Clearly somebody was playing
Monday’s hearing resulted in my again denying injunctive relief and up the case went again
to the Court of Appeals which, after issuing a stay, affirmed by a split vote. The transcript of the in
camera proceedings, now unsealed, is among my papers. What it does not reveal is the
Administration’s effort to discredit the Court. During the closed hearing the national press, now fired
up by the threat of government censorship, was milling around outside. A group of Defense
Department public relations types were spreading the word that I was about to release our country’s
most secret war contingency plans and that lives were somehow threatened. A Chicago paper took
the bait and ran a scare story that morning. Calls to chambers sought confirmation. It was a wild
morning. But there were no facts presented at the hearing to support this canard. The government’s
witness on this point was a former CIA man detailed to the Pentagon who said certain material
constituted these vital war plans. I smelled a phony and asked to hear from a knowledgeable General
familiar with the subject. A General promptly appeared and said the planning paper was so out of
date he hoped our enemies would think it was the real thing, or words to that effect, as I now recall.
The Justice Department tried another false ploy that fell flat. At one moment I was set back
to learn from the government that a document revealed the name of a Canadian diplomat who it
showed was assisting our people from his post in the Far East. Counsel noted that this was a form
of treason that violated the British Security Act and that disclosure might result in his execution.
Here, indeed, was cause to reflect. I noticed one of the defendant’s, Chalmers Roberts, taking a book
to the Post’s counsel who shortly rose to read into the record the text of several books which had
carried the Canadian’s name and revealed his useful service to this country.
To this day I don’t know what got the White House so excited. The papers held few secrets.
Nothing earthshaking. All code references, precise dates of transmission and similar notations of
intelligence value were not involved. Indeed, the material was boring. Ellsberg, who released some
of the material, was a sharp critic of the Nixon Administration; and they tried to compromise him
later, as Watergate inquiries disclosed, but it is unlikely he participated in the almost violent effort
to keep the Pentagon Papers secret. Perhaps it was a mixture of hatred of the press and a legitimate
concern expressed by Macomber that foreign governments would hesitate to share intelligence and
diplomatic confidences with us if we couldn’t control the leakage. Censorship via legislation such
as the British Security Act cannot be squared with the First Amendment, but it was a closer call than
many realize. It is easy to mislead judges and the Solicitor General in this murky intelligence area,
and this experience stiffened my resolve on a number of occasions when comparable considerations
were pressed by the Bush Administration during the case of United States v. Oliver North.
It was apparent that the Administration felt no restraint and was willing to twist facts to gain
Publication of the Pentagon Papers hurt the United States, not because our security was
undermined or vital national defense activity was disclosed. The serious consequence of publication
was the fact that foreign governments were given a chance to question the wisdom of secret
diplomacy when so many confidential discussions with our representatives became public. President
Nixon’s trip to China was being explored through third country channels, and a leak would have been
disastrous. I learned later that there was genuine concern at the Department of State that disclosure
of our inability to honor confidential diplomatic discussions might chill future plans like this then
But the cat was out of the bag. Our government had failed to keep its secrets secret. It, not
the press, was at fault.