The Pentagon Papers, 30 years later

The man who started it all worries more than ever that an official secrets act will keep the public in the dark about how the government handles foreign affairs

From the Spring 2001 issue of The News Media & The Law, page 49.

By Scott L. Matson

When The New York Times reported recently on its front page that U.S. naval officers had concluded the Taiwanese military needed an influx of weapons, the newspaper based its report on a “confidential” and “still secret” review. The only sources in the April 1 story were unnamed “experts familiar with the officers’ review” and a former Pentagon official from the Clinton administration.

In the future, the unnamed experts who shared the confidential report with the newspaper reporter could face a criminal penalty for leaking the information should Congress send another anti-leak provision to the president — and this one gets signed into law.

News reports cloaked by anonymity are not unusual when the subject is the military. Bob Zelnick, a journalism professor at Boston University, knows first hand how high-ranking military officers share information with reporters.

“There were times,” said the former ABC News Pentagon correspondent, “when classified information was dispensed in a quasi-judicial manner.”

Several motives may lead someone inside the Pentagon to leak classified material to the media. Zelnick said his sources were not low-level staffers; rather he tapped into officers with several stars on their collars. Officials would disclose classified information, he said, because they wanted to clarify a current mission and could not formally discuss it, or to highlight flaws that may cause a mission to fail. There also were times, he said, when journalists learned of classified information because people inside the government thought a particular story had not been told or had been told inaccurately.

No matter how noble their purpose, government employees would confront a federal prosecution with the potential of three years in prison and up to a $10,000 fine under last year’s vetoed anti-leak bill. The anticipated ramifications of the measure united media executives from a handful of major news outlets, the American Society of Newspaper Editors and other First Amendment advocates to oppose the anti-leak provision in last year’s intelligence authorization act. A letter-writing campaign and lobbying by close advisers successfully swayed former President Bill Clinton to use the veto pen last November.

The anti-leak proviso, which passed Congress without public hearings, may return in the next 18 months. The combination of a new administration, a pair of returning legislators and a back-handed endorsement from a lame duck president together suggest the next anti-leak federal law could survive.

For the past several months, Daniel Ellsberg has worked to defeat the anti-leak proposal before it returns. Ellsberg is a natural soldier for the cause. He helped awaken the public consciousness to government leaks. Thirty years ago in June, The New York Times, and later The Washington Post, published details of four decades of military escalation in Vietnam in the dozens of volumes of Pentagon documents Ellsberg provided.

In the opinion of this now-70-year-old government watchdog, the legislation would dramatically change the way democracy and government function.

“This would effectively put foreign affairs beyond public discussion,” he said, sipping a mug of tea late on a Saturday afternoon. “It’s at the core of my interest. I want to draw attention to these issues.”

Last November, two weeks before Clinton’s veto, Ellsberg wrote a piece for Salon.com stating the case against the anti-leak proposal. In the spring, he attended the National Freedom of Information Day Conference in Arlington, Va. There, he unexpectedly addressed the group during a question-and-answer period, issuing a passionate call for greater openness in government affairs. And most recently, Ellsberg was the guest speaker at an award dinner hosted by the Society for Professional Journalists where he gave a speech titled “The Dangers of Secrets and Lies: 30 Years After the Pentagon Papers.”

In an hour-long address at the awards dinner, he first compared the 11-day standoff with China this spring to other spy scandals that almost precipitated war. He concluded by responding to a popular sense that he risked everything by releasing the Pentagon Papers. On the contrary, he said, the loss he sustained was a result of holding back the information at a time when disclosure may have changed the course of the war. And only after the Times and Post printed the documents did he feel he regained some dignity.

The government’s attempt to prevent the Times and Post from publishing the Pentagon Papers rocketed to the U.S. Supreme Court in the early summer of 1971 and symbolized the disconcerting practice of government secrecy. Thirteen days after the first article appeared in the Times, the justices convened a special Saturday session on June 26 to hear The New York Times v. U.S. and with comparable speed, the court delivered its opinion the following Wednesday.

Perhaps overshadowed by the government’s case against the newspapers was the subsequent federal criminal prosecution against Ellsberg. From 1964 to 1970, Ellsberg worked for a private, nonprofit company contracted by the Defense Department where he had authorized access to historical documents recounting the U.S. involvement in Vietnam.

The former government employee avoided a conviction when the case was dismissed in May 1973 because of government misconduct against him. At the time, however, Ellsberg had prepared himself for jail.

“I assumed I had broken a law. All my potential jurors assumed it,” he said.

To draw attention to what he called an unprecedented case against him, Ellsberg decided to plead not guilty. At the time, the Justice Department had never prosecuted a government employee for leaking classified documents. In the three decades since, federal prosecutors have won only one conviction for leaks. In 1985, Samuel Morison was prosecuted for violating the Espionage Act when he provided satellite photos of a Soviet nuclear-powered aircraft to a British military weekly. Morison received a presidential pardon in January after serving two years in prison.

Now, when not working on his memoirs, Ellsberg concentrates on publicizing a power play he said threatens the vision of an unrestrained press. He and others believe the anti-leak proposal, if passed, would permit the government to operate in a manner reminiscent of the Vietnam era. Presently, a law prohibits and punishes leaks of information that jeopardize national security.

The vetoed anti-leak measure would not have directly penalized the media. Nonetheless, the effect on the media would be immediately noticed based on the conduct of people in the federal government. Zelnick, a Washington Press corps veteran, said, “People are not used to thinking of this kind of information as a source of criminal prosecution.”

In their opposition, the media asserted that the prospect of a criminal penalty will tempt government employees to classify too many documents in an effort to protect themselves from prosecution. No one can predict whether the Justice Department under the Bush administration would vigorously prosecute leaks. Once the first leak occurs, however, a prosecutor need only look to the newspaper or evening news to find the first potential grand jury witness.

An employee who leaks confidential information to the press on the condition of anonymity — a customary practice — would violate an anti-leak law.

Using the subpoena power, federal prosecutors can call journalists before a grand jury and ask for the source of the documents. Facing contempt of court, a journalist must decide whether to reveal the government source. A realistic worry is that editors will need to concern themselves with making bail rather than making a newspaper. However, journalists who appear to cooperate with law enforcement may damage their credibility and their ability to attract sources in the future.

Though the media may bristle at the prospect of appearing before a grand jury, Thomas Rowe, who teaches constitutional law at Duke University Law School, said an investigation will be permitted so long as a potential anti-leak law passes constitutional muster.

“I realize this is something the press doesn’t like at all,” Rowe said.

Rowe said Congress has the inherent authority to draft an anti-leak law under the “necessary and proper” clause of the Constitution. He also speculated that it would withstand a First Amendment challenge, but quickly added, “official secrets act or no official secrets act, there are always going to be leaks.”

In the House of Representatives, Rep. Porter Goss (R-Fla.), a former clandestine services officer at the CIA during the Vietnam era, backs the effort and has said the leaks of classified information have increased to “not just a trickle, they’ve become a waterfall.” And in the Senate, Sen. Richard Shelby (R-Ala.), the sponsor of last year’s effort, has defended the measure, claiming it applies only to “properly classified” material.

“That’s practically everything in the Pentagon,” Ellsberg countered.

Dressed in a neatly pressed blue button-down shirt and black jeans, Ellsberg occasionally paced as he painted a distressing picture should the anti-leak proposal carry the day.

“What’s at stake is the jettisoning of the First Amendment when it comes to foreign affairs,” Ellsberg said. “It’s putting foreign affairs beyond public discussion.”

He said the statute would provide a clear congressional intent to penalize the leaker, an element he said the prosecution lacked in the case against him. Then, when courts look to the legislative history, they will defer to the lawmakers and the law will survive a constitutional challenge.

In the face of recommendations to sign the anti-leak measure from the attorney general and Central Intelligence Agency, Clinton surprised legal observers with his veto.

Examining the anti-leak proposal, Lucas A. Powe Jr., author of two books on the First Amendment and media, said it was out of place and called the Clinton administration the most hostile to civil liberties since Nixon.

“In the year 2000, we’ve gotten through the Cold War, and we are going to have an Official Secrets Act,” the University of Texas law professor said. “I thought we learned enough not to go down the British route.” In the United Kingdom, a present or former employee of the Crown or security and intelligence services is guilty of an offense if without lawful authority he discloses any information relating to security or intelligence which he possessed as part of the job.

On one hand, the president said the bill “is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy.” And on the other, he wrote in his veto message that “unauthorized disclosures can be extraordinarily harmful to United States national security interests and that far too many such disclosures occur.”

The president concluded by encouraging Congress “as soon as possible to pursue a more narrowly drawn provision tested in public hearings so that those they represent can also be heard on this important issue.”

More troubling still is how an anti-leak law mixes with news reports based on an anonymous source who may have leaked information with the blessing of a superior. Presumably, Powe said, such a leak would not be sanctioned. As a result, the government may opt not to prosecute the official whose leak led to the April 1 arms to Taiwan story in The New York Times. If selective enforcement of the law becomes commonplace, then the public right to know and open access to government are compromised because a system has been created were the public is given only the information the government deems suitable.

“The love affair with the First Amendment ended 20 years ago. It ended with liberalism and the huge traditional support that came from liberalism evaporated in the ’80s,” Powe said.

To the journalist, the harm done by a source who is unwilling to speak is more measurable than the harm done to the institution.

“There hasn’t been the barest predicate laid for this,” Zelnick said. “God knows how many people can place a classified stamp on information. You’re playing with fire. It hurts the press. It hurts the public’s right to know and the decision making process in a democracy.

“The leaks can serve everyone well over time. The public benefits and the institution benefits,” Zelnick said.