Federal Trials and Great Debates in United States History

The Pentagon Papers

in the

Federal Courts

Second Edition

by

Jake Kobrick

Associate Historian

Federal Judicial History Office

Federal Judicial Center

Federal Judicial Center

2019

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage

programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable,

these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.
All images in this publication are in the public

domain unless otherwise noted.
The Pentagon Papers in the Federal Courts

Contents

Part 1. The Case in Context, 1

A Short Narrative, 1

The Judicial Process in the Pentagon Papers Case:

A Chronology, 11

Part 2. The Federal Judiciary, 13

Legal Questions Before the Federal Courts, 13

The Federal Courts and Their Jurisdiction, 15

Part 3. Biographies, 19

Judges and Justices, 19

Lawyers, 26

Other Important Figures, 28

Part 4. Media Coverage and Public Debates, 33

Part 5. Historical Documents, 37

The Publication of the Pentagon Papers, 37

Neil Sheehan, memo to Max Frankel, 37

The New York Times, first article on the Pentagon Papers, 39

The Washington Post, first article on the Pentagon Papers, 40

The Response of the Nixon Administration, 42

Transcripts of President Nixon’s conversations with aides

The Court Proceedings Involving The New York Times

and The Washington Post, 45

The New York Times, brief submitted to U.S. District Court for 

the Southern District of New York in opposition to government’s request for preliminary injunction, 45

iii
Historical Documents—The Court Proceedings, cont’d

Max Frankel, affidavit submitted to U.S. District Court for the 

Southern District of New York, 46

Espionage Act of 1917, as amended, 47

U.S. District Court for the Southern District of New York, decision 

on government’s request for preliminary injunction, 48

U.S. District Court for the District of Columbia, decision on government’s request for temporary restraining order, 49

U.S. Court of Appeals for the District of Columbia Circuit, decision 

on government’s appeal of denial of temporary restraining order, 

50

U.S. District Court for the District of Columbia, decision on government’s request for preliminary injunction, 52

The Supreme Court Case, 53

Government’s brief submitted to Supreme Court, 53

Secret portion of government’s brief submitted to Supreme Court, 

55

The New York Times’s brief submitted to Supreme Court, 56

The Washington Post’s brief submitted to Supreme Court, 57

Amicus brief of 27 members of Congress submitted to Supreme 

Court, 59

Amicus brief of National Emergency Civil Liberties Committee 

submitted to Supreme Court, 60

Supreme Court of the United States, concurring and dissenting opinions in New York Times Co. v. United States, June 30, 1971, 62

Justice Harry A. Blackmun, memorandum regarding opinion of 

Justice Byron White, 65

Judge Harold Leventhal, letter to Judge Walter Bastian, 66

Congressional Response to the Publication of the Pentagon

Papers and the Related Court Decisions, 67

U.S. Representative James Abourezk, remarks in House of Representatives, 67

U.S. Senator George McGovern, remarks in Senate, 68

iv
U.S. Representative William S. Moorhead, remarks in House of 

Representatives, 69

Statement of Hon. Arthur J. Goldberg, Former Supreme Court 

Justice, at congressional hearing, 70

Statement of Richard P. Kleeman, Washington Correspondent for 

the Minneapolis Tribune, and Chairman, Freedom of Information Committee, Sigma Delta Chi, at congressional hearing, 73

Statement of J.W. Roberts, Washington Bureau Chief, Time-Life 

Broadcasting, and Chairman, Freedom of Information Committee of the Radio-Television News Directors Association, at 

congressional hearing, 75

Remarks of U.S. Representative William S. Moorhead at congressional hearing, and letter from members of the House Committee 

on Government Operations to Secretary of Defense Melvin 

Laird, 76

Statement of Hon. William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice, at 

congressional hearing, 77

Public Response to the Court Decisions, 80

Letters to the editor of The New York Times, 80

Letters to jurists regarding the Pentagon Papers, 82

Letters to Neil Sheehan, 88

Press Response to the Court Decisions, 89

“The Vietnam Documents,” 89

“Freedom and Restraint,” 91

“Our Colleagues Err on War Secrets Issue,” 91

“Disclosure and Security,” 92

“Mr. Mitchell Should Go,” 93

“A loss, not a gain,” 93

“Mr. Blackmun’s Dissent,” 94

“The Crisis Coming for a Free Press,” 95

Daniel Ellsberg and the Criminal Case Involving

the Release of the Pentagon Papers, 96

Walter Cronkite, CBS News interview with Daniel Ellsberg, 96

v
Historical Documents—The Criminal Case, cont’d

“Unlike the Others, He Was ‘A Man Driven,’” 97

“Ellsberg: The Battle Over the Right to Know,” 98

“The Advocates”: “Should the Government Drop the Charges 

against Daniel Ellsberg?,” 100

“The Ellsberg Affair,” 102

“Why I did it! An interview with Daniel Ellsberg concerning government security, government hypocrisy, and the Pentagon Papers,” 

103

Defendants’ motion to dismiss indictment in Pentagon Papers criminal case, 105

U.S. District Court for the Central District of California, dismissal 

of indictment in Pentagon Papers criminal case, 106

Aftermath of the Pentagon Papers Cases, 108

President Richard Nixon, statement regarding Watergate, May 22, 

1973

Bibliography, 111

vi
The Pentagon Papers in the Federal Courts

The Case in Context

A Short Narrative

On June 13, 1971, The New York Times stunned the nation

by publishing a front-page story headlined, “Vietnam 

Archive: Pentagon Study Traces 3 Decades of Growing 

U.S. Involvement.” The subject of that article, and those that followed in the next two days, was United States-Vietnam Relations: 

1945–1967, a forty-seven-volume history of American involvement in Vietnam, commissioned by Secretary of Defense Robert 

McNamara and prepared by a Pentagon task force between 1967 

and 1969. The leaked study, classified “Top Secret—Sensitive,” was 

based on documents from the Department of Defense, the CIA, 

and the Department of State. Once portions of it became public, 

the study became popularly known as the “Pentagon Papers.” 

1

Secretary of Defense Robert McNamara

discusses Vietnam at a press conference, 1965.
2

Federal Trials and Great Debates in United States History

The Times’s initial coverage of the Pentagon Papers focused on events in 1964 and 

1965 and suggested that President Lyndon Johnson’s administration had repeatedly misled 

the public about the government’s strategy in Vietnam. The articles and accompanying 

excerpts from the report revealed that the United States had carried out clandestine raids 

on North Vietnam for months before Congress had authorized escalation of the war via 

the August 1964 Tonkin Gulf Resolution. Moreover, that resolution had been drafted in 

advance of the purported North Vietnamese attacks on U.S. Navy ships that had ostensibly served as the basis for congressional action. The articles also cited findings that the 

administration had, by September 1964, decided that bombing North Vietnam would be 

necessary, even as Johnson ran for President on a platform of restraint, in contrast to his 

more bellicose opponent, Barry Goldwater. Other documents indicated that Johnson decided in April 1965 to use American ground troops for offensive action in Vietnam while 

concealing that major strategic change from the public. 

Public Opposition to the Vietnam War and Tension at the Pentagon

The audience for the revelations contained in the Pentagon Papers was an American public already angry and dispirited about the Vietnam War. In the early stages of American 

involvement in Vietnam, most Americans supported the war, believing it to be 

a necessary part of the effort to contain 

the spread of communism. As the war 

escalated—resulting in more troops sent 

to Vietnam, more bombing by the United States, and more casualties, including 

Vietnamese civilians—public opinion 

began to turn. While activist groups such 

as Students for a Democratic Society had 

opposed the war since 1965, the antiwar movement was widespread by 1967, 

when the first massive protests were held 

in Washington. Debate over the war was 

a central issue in the 1968 presidential 

election. 

Protesters argued that the war was 

both immoral and unwinnable. They asserted that the United States did not have 

Antiwar demonstrations at the I.R.S., top, and White the right to dictate the fate of a foreign House, above, 1971.
3

The Pentagon Papers in the Federal Courts

country, that the American government had supported a repressive and corrupt regime in 

South Vietnam, and that mounting numbers of Americans and Vietnamese were dying for 

no valid reason. The increasingly unpopular draft disproportionately burdened the poor 

and people of color, and this unfairness was among the reasons that many young men resisted by burning their draft cards or fleeing to Canada. By 1970, polls showed that a majority of Americans thought military involvement in Vietnam had been a mistake. That

year, the antiwar movement reached its peak with demonstrations on college campuses

across the nation. The killings of student protestors by members of the National Guard at

Kent State University in Ohio and Jackson State University in Mississippi sparked national 

outrage.

Misgivings about the Vietnam War reached the highest echelon of the Pentagon as 

well. While President John F. Kennedy and his successor, Lyndon B. Johnson, had initially harbored 

doubts about the wisdom of making a major commitment to the struggle in Vietnam, the deployment 

of U.S. ground troops in 1965 set a seemingly inexorable course. From that point onward, Johnson 

believed that to withdraw from Vietnam would result in a communist takeover of Southeast Asia and 

a corresponding loss of U.S. credibility in the eyes 

of the noncommunist world. As early as 1966, however, Secretary of Defense Robert McNamara was 

concerned about America’s ability to win the war. By 

1967, his doubts had flourished into a belief that the 

United States should withdraw its troops and seek a negotiated peace with North Vietnam. This stance put him at odds with President Johnson and military leaders, leading to 

his departure from the Pentagon in 1968. McNamara’s change of heart played a role in 

his decision to commission the Pentagon Papers. Preserving the historical record of U.S. 

involvement in Vietnam would, he hoped, provide lessons to help prevent similar foreign 

misadventures in the future.

Government Secrecy and the National Security State

The Pentagon Papers were leaked at a time of already-diminished faith in government, due 

in large part to opposition to the Vietnam War and bolstered by a growing apprehension 

about excessive government secrecy. News coverage of the papers brought to the forefront 

of public debate concerns about the national security state that had emerged since World 

War II and the accompanying classification of government records. The modern system of 

McNamara hoped 

a record of

U.S. involvement

in Vietnam would

provide lessons

for the future.
4

Federal Trials and Great Debates in United States History

information classification originated from the nexus of the heightened fear of espionage 

that characterized the Cold War era and the development of increasingly sophisticated 

military technology that the government wished to conceal from the Soviet Union and 

other foreign adversaries. While most recognized that some degree of secrecy was necessary, many believed that the government was abusing its classification power. Journalists 

worried that the suppression of vital information was endangering the freedom of the press 

that was necessary for a well-functioning democracy. A campaign for greater transparency 

led by the American Society of Newspaper Editors resulted in the passage of the Freedom 

of Information Act in 1966, increasing the public’s ability to access government records. 

Nevertheless, the balance between national security and the people’s “right to know” remained a contentious issue.

The disclosure of the Pentagon Papers exacerbated the public’s mistrust of the government, and of the executive branch in particular. The papers seemed to confirm the most 

pessimistic suspicions about the missteps that had led to a massive military commitment. 

A consistent theme of articles on the study was the extent to which each presidential 

administration since Harry Truman’s had misled the public about U.S. involvement in 

Southeast Asia and about the likelihood of military success. 

Reaction from the White House and the Battle in the Federal Courts

The publication in The New York Times of excerpts from a classified Defense Department 

study caught most people in the White House by surprise. The Defense Department made 

only fifteen copies of the study, which was narrowly circulated within the executive branch. 

President Richard Nixon had not been aware of the study, although Nixon’s National Security Advisor, Henry Kissinger, had consulted with Defense Department staff members 

while they prepared the study, and Nixon’s Secretary of Defense, Melvin Laird, learned of 

the report when he took office in 1969.

When Nixon learned of the Times article on June 13, 1971, he considered the action of the unknown leaker or leakers as “treasonable,” but his initial reaction focused 

primarily on speculation about the partisan advantages of a report that was so critical of 

his Democratic predecessors. After consultations with Kissinger, counsel to the president 

John Ehrlichman, and Attorney General John Mitchell, Nixon decided that in addition to 

identifying and prosecuting the leaker, the Department of Justice should take legal action 

to halt further publication of the Pentagon Papers. Stopping the newspapers, he came to 

believe, was necessary to protect the sanctity of classified information.

On Monday, June 14, Justice Department lawyers filed suit against The New York 

Times in the U.S. District Court for the Southern District of New York, seeking two separate orders to stop publication: a temporary restraining order that would halt publication 
5

The Pentagon Papers in the Federal Courts

until the court held a hearing and received evidence, and a preliminary injunction, a restraint of longer duration that would be issued after the hearing and remain in effect until 

the completion of a full trial. The Nixon administration’s attempt to obtain an unprecedented prior restraint on a newspaper quickly fueled criticism from members of Congress, 

who asserted a “legislative right to know,” and from a public that wanted free discussion of 

the nation’s military and foreign policy.

The Pentagon Papers case was just the latest of several instances in which the federal 

government sought to impose restrictions on speech or the press during a time of war or 

other perceived national crisis. In 1798, during 

a naval conflict with France, the Federalists in 

Congress passed the Sedition Act, under which 

numerous people, including newspaper editors 

and a member of Congress, were convicted and 

imprisoned for speech or writings critical of the 

government. The government imposed various restrictions on free expression during the Civil War, 

including the military’s arrest and prosecution 

of politician Clement Vallandigham for disloyal 

speech. Newspapers in the North sympathetic 

to the Confederacy were subject to repression as 

well. Some papers had their publication halted 

by order of the military, others were barred from 

the mail, and several editors were arrested. World 

War I perhaps represented the high-water mark 

for restrictions on First Amendment freedoms, as 

the government prosecuted large numbers of dissenters under the Espionage Act of 1917 and the 

Sedition Act of 1918 for speech alleged to be disloyal or seditious. Finally, the Cold War brought 

with it restrictions on the speech of American communists. In 1951, leaders of the Communist Party USA were convicted under the Smith Act for speech that was deemed to 

advocate the overthrow of the U.S. government. 

Although government attempts to limit speech during wartime were not unusual, 

the Department of Justice was seeking an unprecedented remedy in asking a federal court 

to halt a newspaper’s publication of the Pentagon Papers. Never in the nation’s history 

had the civilian federal government forbidden publication before the fact, as opposed to 

pursuing criminal prosecution of those whose speech was alleged to have violated the 

The government has sought to restrict free 

expression in several moments of national 

crisis.
6

Federal Trials and Great Debates in United States History

law. Since the adoption of the Bill of Rights in 1791, both state and federal judges had 

understood freedom from prior restraint of publication to be at the very core of the rights 

protected by the First Amendment. As the Supreme Judicial Court of Massachusetts noted 

in 1825, freedom of the press “was intended to prevent all such previous restraints upon 

publications as had been practised by other governments, and in early times here, to stifle 

the efforts of patriots towards enlightening their fellow subjects upon their rights and the 

duties of rulers.” In keeping with this view of constitutional protection for free expression, 

state courts refused throughout the nineteenth century to grant injunctions against speech 

purported to be libelous. It was not until 1931 that the Supreme Court of the United 

States had occasion to weigh in on the issue, when it decided Near v. Minnesota. In striking 

down a Minnesota law permitting the state to seek court orders halting the publication 

of newspapers printing defamatory material, Chief Justice Charles Evans Hughes asserted 

that “the chief purpose” of freedom of the press was “to prevent previous restraints upon 

publication.” 

Despite the judiciary’s historical aversion to prior restraint, on June 15, 1971, Judge 

Murray Gurfein granted the government’s request for a temporary restraining order, stopping the Times’s presses after the paper had published the third article in its series on the 

Pentagon Papers. Lawyers for the Times argued that a preliminary injunction extending 

the duration of the restraint could not be imposed unless the government attorneys established that continued publication would cause grave and irreparable harm to the nation’s 

security. The government, in the view of the newspaper’s lawyers, had failed to meet this 

strict standard. After listening to testimony in a closed hearing, Judge Gurfein agreed with 

the lawyers for the Times and declined to impose a preliminary injunction, although he 

continued the temporary restraint while the Justice Department appealed his decision. 

While the Justice Department and The New York Times challenged one another in 

the federal court in New York City, The Washington Post obtained a copy of the Pentagon 

Papers and began its own series of articles on June 18. The Justice Department acted quickly to halt publication by The Washington Post as well, filing suit in the U.S. District Court 

for the District of Columbia and requesting the same injunctions it had requested with 

respect to the Times. Unlike Judge Gurfein in New York, however, Judge Gerhard Gesell 

decided that the First Amendment did not permit a prior restraint of any duration, and 

he denied the administration’s request for a temporary restraining order against the Post. 

The U.S. Court of Appeals for the District of Columbia Circuit disagreed, and by a vote of 

2–1 imposed a temporary restraint and sent the case back to Judge Gesell with instructions 

to hold a hearing on the administration’s claim that further publication would jeopardize 

national security. In a strongly worded dissent, Judge J. Skelly Wright lamented, “This is 

a sad day for America.” As in New York a few days earlier, the Justice Department lawyers 
7

The Pentagon Papers in the Federal Courts

and their witnesses failed to persuade a district judge that further publication of the Pentagon Papers would irreparably damage national security, and Judge Gesell declined to issue 

a preliminary injunction. 

On June 23, the U.S. Court of Appeals for the Second Circuit, sitting in New York, 

and the U.S. Court of Appeals for the District of Columbia Circuit issued their decisions 

on the denial of preliminary injunctions against The New York Times and The Washington 

Post, respectively, and the two courts reached different results. The Second Circuit Court of Appeals 

sent the case back to Judge Gurfein of the district 

court for further hearings on a “special appendix” 

the government had filed with the court of appeals 

after the district court denied its motion for an injunction. In contrast, the court of appeals in Washington, D.C., upheld Judge Gesell’s decision to deny 

the injunction. These differing decisions in virtually 

identical cases set the stage for a resolution by the 

Supreme Court of the United States. 

Solicitor General Erwin Griswold represented 

the Nixon administration. Griswold argued before 

the Court that a prior restraint on publication was 

justified by the President’s authority to conduct foreign affairs and by his role as commander-in-chief of the armed forces, both of which were 

infringed upon by the publication of the Pentagon Papers. The Justice Department lawyers also filed a separate, sealed brief in which they identified specific documents from the 

Pentagon study and explained how the publication of such material could harm national 

security by, for example, hindering negotiations to end the war, damaging relations with 

U.S. allies, and interfering with talks over prisoners of war. The newspapers, on the other 

hand, continued to argue in their briefs to the Supreme Court that the government failed 

to establish a harm to national security sufficient to meet the very heavy burden of proof 

for the imposition of a prior restraint.

 After hearing oral arguments on June 26, the Supreme Court issued its decision on 

June 30 in a brief per curiam, or unsigned, opinion. The Court held, by a vote of 6–3, that 

the government had not met its heavy burden of proving that a prior restraint was justified. 

The decision of the U.S. Court of Appeals for the Second Circuit was reversed, that of the 

U.S. Court of Appeals for the District of Columbia Circuit was affirmed, and the Times

and the Post would be permitted to continue publishing the Pentagon Papers. Each of the 

nine justices released opinions explaining their concurring or dissenting votes. The most 

The newspapers 

argued that

the government 

had failed to 

demonstrate that 

publication would 

cause grave harm.
8

Federal Trials and Great Debates in United States History

strongly worded concurrence came from Justice Hugo Black, a staunch supporter of freespeech rights, who called the temporary restraint on publication “a flagrant, indefensible, 

and continuing violation of the First Amendment.” Chief Justice Warren Burger, who 

dissented, noted that The New York Times had the Pentagon Papers for three months before 

publishing them, while the courts were forced to decide in a matter of days whether the 

massive study posed a threat to national security. The New York Times and The Washington 

Post immediately resumed publication of articles based on the Pentagon Papers. 

Daniel Ellsberg and the Aftermath of the Pentagon Papers

Within days of the first article appearing in The New York Times, FBI agents suspected that 

the Pentagon Papers had been leaked to the Times by Daniel Ellsberg, who had contributed to the study at the Defense Department and whom the FBI had investigated in 1970 

following allegations that he had illegally copied the report. Ellsberg had been part of the 

defense establishment and an ardent supporter of United States military involvement in 

Vietnam. He graduated from Harvard, served in the Marine Corps, then returned for his 

Ph.D. at Harvard, where he worked alongside Henry Kissinger. Ellsberg worked at the 

RAND Corporation, a civilian think tank that worked closely with the Pentagon, and 

then in the highest echelons of the Department of Defense, planning military strategy for 

the Vietnam War. In 1965, he attempted to reenlist in the Marines to fight in Vietnam 

but was rejected because of his high status in the Defense Department. Instead, he went 

to Vietnam as a civilian, accompanying military units and meeting with leading American 

Supreme Court of the United States Official Photo

The Supreme Court of the United States in 1971. Front row: Justice John M. Harlan, Justice Hugo L. 

Black, Chief Justice Warren E. Burger, Justice William O. Douglas, and Justice William J. Brennan, 

Jr. Back row: Justice Thurgood Marshall, Justice Potter Stewart, Justice Byron R. White, and Justice 

Harry A. Blackmun.
9

The Pentagon Papers in the Federal Courts

strategists. After his return to the United States, Ellsberg worked on the Pentagon Papers 

project, writing much of the section on the Vietnam policy of the Kennedy administration. At some point in 1967, Ellsberg developed serious doubts about United States military involvement in Vietnam, although in 1969, Henry Kissinger asked him to prepare a 

list of policy options for the new Nixon administration. 

While working again at the RAND Corporation in 1969, Ellsberg read the entire 

study, which galvanized his growing opposition to the war. Believing that the American 

people needed to know the truth about U.S. involvement in Vietnam, Ellsberg in 1969 began 

to photocopy the report from the RAND office 

in Santa Monica, California, and then sought 

ways to make the findings public. He met with 

Kissinger to urge him to read the full report. Ellsberg provided excerpts to several antiwar members of Congress, including George McGovern, 

but none agreed to release the report. In March 

1971, Ellsberg delivered the photocopies to reporter Neil Sheehan of The New York Times. Following publication of the first article, Ellsberg 

went into hiding and orchestrated the release of 

further copies to other news outlets. 

In late June 1971, just before the Supreme 

Court issued its decision in the newspaper cases, 

a federal grand jury in Los Angeles indicted Ellsberg on charges of theft and espionage. Later that 

year, a revised indictment added to the charges and indicted as a co-conspirator Anthony 

Russo, who had assisted in photocopying the secret report. In January 1973, Ellsberg 

and Russo went on trial in the U.S. District Court for the Central District of California, 

with Judge Matthew Byrne presiding. After three months, the trial was interrupted by 

revelations about the strange and seemingly illegal activity of officials in the Nixon administration and staff associated with the President’s reelection campaign. Federal prosecutors 

disclosed to Judge Byrne that in the wake of the Pentagon Papers leak, the White House 

had established a special unit, nicknamed the “Plumbers,” to deter future leaks of classified 

material as well as to gather information on Ellsberg and Russo. Members of that unit 

conducted electronic surveillance of Ellsberg and broke into the Los Angeles office of Ellsberg’s psychiatrist in search of Ellsberg’s records. Judge Byrne refused to dismiss the case 

when a newspaper revealed that during the trial Byrne had met at least twice with John 

Justice Black’s opinion resonated with a public 

increasingly wary of government secrecy.
10

Federal Trials and Great Debates in United States History

Ehrlichman, and on one occasion with Nixon himself, to discuss their offer to appoint the 

judge director of the FBI. When further evidence established that the FBI had secretly and 

illegally recorded conversations between Ellsberg and one of the principal authors of the 

Pentagon Papers as early as 1969, the judge had little choice but to end the trial. Explaining that “the bizarre events have incurably infected the prosecution of this case,” Judge 

Byrne in May 1973 finally dismissed the criminal charges against Ellsberg and Russo. 

The aftermath of the cases had dramatic implications for the Nixon administration 

and the nation as a whole. Ellsberg’s leak, and Nixon’s overzealous response to it, initiated 

a chain of events leading to the most significant political scandal in American history. 

The “Plumbers” moved on from their illegal surveillance of Ellsberg and, in the months 

preceding the 1972 election, undertook surveillance of the Democratic Party. Two members of the Plumbers—E. Howard Hunt and G. Gordon Liddy, who had orchestrated the

Ellsberg break-in—planned and supervised the June 1972 burglary of the Democratic 

Party headquarters at the Watergate complex in Washington, D.C. Nixon’s efforts to cover 

up the White House’s role in the burglary ultimately led to his resignation in August 1974.
11

The Pentagon Papers in the Federal Courts

The Judicial Process in the

Pentagon Papers Case

A Chronology

June 14, 1971

The U.S. Department of Justice filed suit against The New York 

Times in the U.S. District Court for the Southern District of New 

York, seeking a temporary restraining order and a preliminary injunction against further publication of the Pentagon Papers.

June 15, 1971

U.S. District Judge Murray Gurfein granted the government’s 

request for a temporary restraining order against the Times, to 

expire on June 19.

June 18, 1971

The Department of Justice filed suit against The Washington Post 

in the U.S. District Court for the District of Columbia, seeking 

the same orders it had requested with respect to the Times. U.S. 

District Judge Gerhard Gesell denied the government’s request for 

a temporary restraining order.

June 19, 1971

Judge Gurfein denied the government’s request for a preliminary 

injunction prohibiting further publication of the Pentagon Papers 

by the Times.

June 19, 1971

The U.S. Court of Appeals for the District of Columbia Circuit 

voted 2–1 to reverse Judge Gesell’s denial of a temporary restraining order against the Post.
12

Federal Trials and Great Debates in United States History

June 21, 1971

Judge Gesell denied the government’s request for a preliminary 

injunction prohibiting further publication of the Pentagon Papers 

by the Post.

June 23, 1971

After hearing the case en banc, the U.S. Court of Appeals for the 

Second Circuit voted 5–3 to remand the case to the district court 

for further proceedings on the government’s request for a preliminary injunction against the Times.

June 23, 1971

After hearing the case en banc, the U.S. Court of Appeals for the 

District of Columbia Circuit voted 7–2 to affirm Judge Gesell’s 

denial of a preliminary injunction against the Post.

June 25, 1971

The Supreme Court of the United States granted certiorari in the 

Times and Post cases to resolve the conflicting decisions of the 

courts of appeals, consolidating the two cases for argument.

June 26, 1971

The Supreme Court heard arguments on the Pentagon Papers

cases.

June 30, 1971

The Supreme Court held by a 6–3 vote that the government was 

not entitled to a preliminary injunction restraining publication of 

the Pentagon Papers by either the Times or the Post. Accordingly, 

the judgment of the Second Circuit was reversed and that of the 

District of Columbia Circuit affirmed.
The Pentagon Papers in the Federal Courts

The Federal Judiciary

Legal Questions Before the Federal Courts

Should the U.S. district courts have issued temporary 

restraining orders preventing further publication of 

the Pentagon Papers until hearings on the government’s request for a preliminary injunction could be 

held?

Yes. Although prior restraints on publication are strongly disfavored under the First Amendment, temporary restraining orders 

were entered against both newspapers. Judge Murray Gurfein of 

the U.S. District Court for the Southern District of New York 

ordered The New York Times to halt publication of the Pentagon 

Papers upon the government’s initial request. His counterpart in 

the District of Columbia, Judge Gerhard Gesell, declined to issue 

a restraining order against The Washington Post, but was reversed 

by the U.S. Court of Appeals for the District of Columbia Circuit.

In granting the restraining order, Judge Gurfein reasoned 

that the temporary harm caused by a brief halt in publication 

was outweighed by the irreparable harm to national security that 

could occur if the Times were allowed to continue publishing the 

Pentagon Papers. Judge Gesell, on the other hand, believed that 

a prior restraint on publication was expressly disallowed by the 

Supreme Court’s 1931 decision in Near v. Minnesota. The court 

of appeals disagreed, holding that the Pentagon Papers might fall 

into the narrow exception for an imminent threat to national security suggested by the Near opinion and that the government 

was entitled to an order freezing the status quo so that a hearing 

on this question could be held. Judge J. Skelly Wright dissented, 

2
14

Federal Trials and Great Debates in United States History

insisting that all presumptions be made in favor of free speech and that the government 

had made no showing of specific harm sufficient to justify a restraining order.

Was the newspapers’ publication of the Pentagon Papers prohibited by 

federal statute?

No. The Department of Justice argued that the Times and the Post had violated 18 U.S.C. 

§ 793(e), part of the Espionage Act of 1917. That section prohibited the communication, 

delivery, or transmission of information relating to the national defense by anyone unauthorized to have such information and having reason to believe the information could be 

used to the injury of the United States or the advantage of a foreign nation. The statute 

provided for criminal penalties, but not for a prior restraint on publication. Nevertheless, 

the government argued that an injunction was authorized when a statute’s criminal penalties were inadequate to accomplish the legislation’s purpose.

Judge Murray Gurfein of the U.S. District Court for the Southern District of New 

York rejected the government’s statutory argument, reasoning that the inclusion of the 

word “publish” in other sections of the Espionage Act, but not in section 793(e), indicated that Congress did not intend for that section to apply to the conduct of the Times. 

Moreover, the judge pointed out that Congress had, in forming the original Espionage Act 

during World War I, voted down a proposal to prohibit the publication of certain national 

defense information during wartime. Judge Gerhard Gesell of the U.S. District Court for 

the District of Columbia likewise declined to apply the statute to the conduct of the Post, 

simply noting that the law did not authorize a prior restraint.

In their opinions concurring in the Supreme Court’s judgment that injunctions 

against the Times and the Post were not warranted, Justices William Douglas, Byron White, 

and Thurgood Marshall agreed that section 793(e) could not serve as a basis for imposing a 

prior restraint. In dicta, Justice White noted his belief that the statute did authorize criminal penalties against the newspapers despite its omission of the word “publish.”

Should the federal courts impose a prior restraint on publication of the 

Pentagon Papers in the form of a preliminary injunction?

No. None of the five federal courts that ruled on the Pentagon Papers cases held that a 

preliminary injunction—a prior restraint on publication that would remain in effect until 

a full trial could be held—was justified. The judges of the U.S. district courts in New York 

and Washington, D.C., both denied the government’s requests for injunctions. The U.S. 

Court of Appeals for the District of Columbia Circuit affirmed the denial of an injunction 

against the Post, while the Second Circuit sent the case back to the district court for further proceedings regarding the Times. Before the district court could take further action, 

the Supreme Court reviewed the case and ruled 6–3 that no injunctions should be issued.
15

The Pentagon Papers in the Federal Courts

The Federal Courts and Their Jurisdiction

U.S. District Court for the Southern District of New York

The U.S. District Court for the Southern District of New York heard the federal government’s request for a temporary restraining order and a preliminary injunction barring The 

New York Times from further publication of the Pentagon Papers. The district court granted a 

temporary restraining order to last only a few days until the request for an injunction could 

be resolved. Shortly thereafter, upon hearing evidence in a public hearing as well as a closed 

one, the court denied the government’s request for an injunction. The district court had jurisdiction over the matter because it was a civil case in which the United States was a plaintiff. 

The district courts were established by Congress in the Judiciary Act of 1789, and they 

serve as the trial courts in each of the federal judicial districts. The U.S. District Court for 

the Southern District of New York was established in 1814, when Congress divided New 

York into two judicial districts. New York was subsequently divided into three and then four 

judicial districts, but the Southern District has always included Manhattan.

U.S. Court of Appeals for the Second Circuit

The U.S. Court of Appeals for the Second Circuit heard the federal government’s appeal of 

the district court’s denial of a preliminary injunction against The New York Times. After the 

case was heard by the full court, a majority voted to remand the case to the district court for 

hearings on a special appendix the government had filed in an attempt to prove that further 

publication of the Pentagon Papers would harm national security. The case went to the U.S. 

Supreme Court before the district court could hold further proceedings, however.

The U.S. courts of appeals were established by Congress in 1891. A court of appeals in 

each of the regional judicial circuits was established to hear appeals from the federal trial 

courts, and the decisions of the courts of appeals are final in many categories of cases. The 

In order to obtain injunctions against the newspapers, the government would have been 

required to demonstrate both a likelihood of success on the merits of the litigation and 

irreparable harm that would result without an injunction. Judge Gurfein of the U.S. district court in New York found that neither condition existed. He did not believe that the 

government had a likelihood of success at trial, given that the conduct of the Times was not 

prohibited by federal statute, as is explained above.

The judge also ruled—after hearing testimony from representatives of the Departments of State and Justice and the Joint Chiefs of Staff—that the government had failed 

to prove “that the publication of these historical documents would seriously breach the 

national security.” Judge Gesell in the District of Columbia came to the same conclusion, adding that the government’s interest was “inseparable from the public interest” and 

that “the public interest makes an insistent plea for publication.” Citing the strong First 

Amendment interests at stake, the U.S. court of appeals agreed with Judge Gesell that the 
16

Federal Trials and Great Debates in United States History

government had not provided proof sufficient to override those interests. The Supreme 

Court of the United States ruled by a 6–3 vote that no prior restraint on publication 

should be imposed on either of the newspapers. In a brief per curiam opinion, the Court 

held that the government had not met its heavy burden of proving that such a restraint 

was justified. Each of the nine justices wrote a concurring or dissenting opinion to explain 

his vote. 

Justices Hugo Black and William Douglas took the strongest concurring positions, 

asserting that the First Amendment stood as an absolute bar to the imposition of a prior 

restraint on publication. Justice Black described the temporary restraining orders that had 

been issued against the newspapers as “a flagrant, indefensible, and continuing violation 

of the First Amendment.” Justice William Brennan did not take an absolutist position 

but asserted that no prior restraint could issue unless the government showed “proof that 

publication must inevitably, directly, and immediately cause the occurrence of an event 

Second Circuit consists of New York, Vermont, and Connecticut, and the Second Circuit 

court of appeals has always met in Manhattan. 

U.S. District Court for the District of Columbia

The U.S. District Court for the District of Columbia heard the federal government’s request 

for a temporary restraining order and a preliminary injunction barring The Washington Post

from further publication of the Pentagon Papers. The district court declined to issue any such 

restraint on publication. The court had jurisdiction over the matter because it was a civil case 

in which the United States was a plaintiff.

Congress established the court in 1863 as the Supreme Court of the District of Columbia, which exercised a blend of original and appellate jurisdiction and had jurisdiction over 

both local and federal matters. In 1893, the court’s appellate jurisdiction was transferred 

to the newly created Court of Appeals of the District of Columbia. In 1936, the court was 

renamed the District Court of the U.S. for the District of Columbia, and in 1948 it assumed 

its current name in conformity with the other U.S. district courts. At the time of the Pentagon Papers case, the district court was still exercising local in addition to federal jurisdiction; 

in 1973, its local jurisdiction was transferred to the Superior Court of the District of Columbia.

U.S. Court of Appeals for the District of Columbia Circuit

The U.S. Court of Appeals for the District of Columbia Circuit initially heard the federal 

government’s appeal of the district court’s denial of a temporary restraining order against The

Washington Post. A three-judge panel heard the case and voted 2–1 to reverse the judgment 

of the district court. Four days later, the full appellate court heard the government’s appeal of 

the district court’s denial of a preliminary injunction against further publication of the Pentagon Papers. This time, the court voted 7–2 to affirm the district court’s decision.

Congress created the court in 1893 as the Court of Appeals of the District of Columbia, 
17

The Pentagon Papers in the Federal Courts

kindred to imperiling the safety of a transport already at sea.” Justices Byron White and 

Potter Stewart both argued that while a prior restraint could be justified under some circumstances, the government had not shown that irreparable injury would result from 

publication of the Pentagon Papers. Justice Thurgood Marshall focused his opinion on 

separation of powers concerns, stating that the executive could not obtain a prior restraint 

without congressional authorization in the form of a statute. 

Chief Justice Warren Burger and Justices Harry Blackmun and John Marshall Harlan 

dissented from the Court’s judgment. All three believed that the Pentagon Papers cases 

had been resolved too hastily, and that the government should have been given more time 

to review the documents at issue in order to make its case. Several of the justices on both 

sides of the case, including Byron White in particular, emphasized that despite its failure 

to obtain injunctive relief, the government could potentially pursue criminal prosecutions 

of the newspapers under the espionage laws.

two years after it had created the U.S. courts of appeals for the First through Ninth Circuits. 

The court exercised both federal and local jurisdiction, hearing appeals from the Supreme 

Court of the District of Columbia as well as from local courts. The court was renamed the 

U.S. Court of Appeals for the District of Columbia in 1934, and in 1948 assumed its current 

name in conformity with the other U.S. courts of appeals. In the early 1970s the court’s 

jurisdiction became exclusively federal.

Supreme Court of the United States

The Supreme Court heard the appeal of The New York Times from the judgment of the U.S. 

Court of Appeals for the Second Circuit restraining further publication of the Pentagon 

Papers, together with the U.S. government’s appeal of the judgment of the U.S. Court of 

Appeals for the District of Columbia Circuit declining to impose a similar injunction against 

The Washington Post. The Court ruled 6–3 that no such preliminary injunctions were justified. Noting that prior restraints on publication were presumed to be unconstitutional, the 

Court held that the government had failed to make a showing of irreparable harm to national 

security sufficient to overcome such a presumption.

The Supreme Court is the nation’s highest appellate court. The Constitution grants the 

Supreme Court original jurisdiction in cases in which states are a party and those involving diplomats, but it empowers Congress to determine the Court’s size and the scope of its 

appellate jurisdiction. The Judiciary Act of 1789 established a Supreme Court with one chief 

justice and five associate justices. Congress subsequently increased and reduced the number 

of justices several times during the early- and mid-nineteenth century, though the Court has 

retained nine seats since 1869. Throughout its first century, the Supreme Court was responsible for deciding most civil appeals, and the justices had little control over a docket that was 

increasingly overcrowded. The Court gained discretionary power over the bulk of its appellate 

docket in 1925.

The Pentagon Papers in the Federal Courts

Biographies

Judges and Justices

Murray Gurfein

Judge Murray I. Gurfein of the U.S. District Court for the Southern District of New York was the judge who initially granted the 

federal government’s request for a temporary 

restraining order preventing further publication of the Pentagon Papers by The New York 

Times. After holding a closed-door hearing, 

Gurfein decided that the government had not 

met its burden of showing that further publication would cause irreparable harm and declined to issue a preliminary injunction. The 

U.S. Court of Appeals for the Second Circuit 

ordered that the case be sent back to the district court for further 

proceedings, but the Supreme Court took the case before Gurfein 

could hear additional evidence.

Gurfein was born November 17, 1907, in New York City. 

He graduated from Columbia University in 1926, then attended 

Harvard Law School, finishing second in his class in 1930. After 

clerking for Judge Julian Mack of the U.S. Court of Appeals for 

the Seventh Circuit, Gurfein served for two years as an assistant 

U.S. attorney in New York and then entered private practice. By 

1935, he had returned to government service, working in the 

New York County district attorney’s office until 1942. 

During World War II, Gurfein served as an intelligence officer in the U.S. Army Office of Strategic Services, and he was an 

3

Gurfein

American Jewish Historical Society
20

Federal Trials and Great Debates in United States History

assistant to former Supreme Court Justice Robert H. Jackson while Jackson was the chief 

U.S. prosecutor at the Nuremberg trials of Nazi war criminals. In 1946, Gurfein returned 

to private practice in New York City, where he remained until his appointment to the federal bench by President Nixon in 1971.

A new federal judge at the time of the Pentagon Papers litigation, Gurfein served 

for three more years on the district court before Nixon appointed him to the U.S. Court 

of Appeals for the Second Circuit, also based in New York City. During his tenure on the 

appellate court, he served as the chair of the Judicial Panel on Multidistrict Litigation from 

1978 to 1979. Gurfein died on December 16, 1979, at the age of seventy-two. 

Gerhard Gesell

Judge Gerhard A. Gesell of the U.S. District Court for the District of Columbia heard 

the federal government’s case against The Washington Post, declining to issue a temporary 

restraining order against further publication of the Pentagon Papers. 

This ruling was reversed by the U.S. Court of Appeals for the District 

of Columbia Circuit. After a hearing on the government’s request for a 

preliminary injunction, Gesell ruled for the Post, finding that the government had not demonstrated proof of irreparable harm sufficient to 

override the First Amendment issues at stake. Gesell’s decision was affirmed by the court of appeals and subsequently upheld by the Supreme 

Court.

Gesell was born on June 16, 1910, in Los Angeles, California, and 

grew up in New Haven, Connecticut. He earned his undergraduate and law degrees from 

Yale in 1932 and 1935, respectively. Immediately after law school, he moved to Washington, D.C., for a job as a trial lawyer with the Securities and Exchange Commission, eventually working under SEC Chairman William O. Douglas, later a justice of the Supreme 

Court. In 1941, Gesell joined the prestigious law firm of Covington & Burling, working 

on antitrust and other corporate litigation until his appointment to the bench in 1967. 

During World War II, he took a leave of absence from the firm to serve as counsel to a joint 

congressional committee investigating the attack on Pearl Harbor. From 1962 to 1964, 

he once again served the federal government as the chair of the President’s Committee on 

Equal Opportunity in the Armed Forces.

At the age of fifty-seven, Gesell was appointed to the U.S. district court by President 

Lyndon B. Johnson. His twenty-five-year tenure on the bench was filled with many notable cases. In 1969, he struck down the District of Columbia’s ban on abortion, but his 

ruling was reversed by the Supreme Court. Gesell also presided over the trials of some of 

the Watergate defendants—including that of Charles Colson, special counsel to President 

Nixon—and ruled that Nixon’s dismissal of special prosecutor Archibald Cox was illegal. 

Gesell

Historical Society of the D.C. Circuit
21

The Pentagon Papers in the Federal Courts

In the years following the Pentagon Papers case, Gesell tried Nixon aide John Ehrlichman 

and others for authorizing the burglary of the office of Daniel Ellsberg’s psychiatrist. In 

1989, Gesell presided over the trial of White House aide Oliver North for his role in the 

Iran-Contra scandal, during which the United States secretly supplied arms to Iran in order to fund rebels fighting in Nicaragua. 

Gesell remained on the bench until his death, assuming senior status in January 1993 

and dying on February 19, 1993, at the age of eighty-two. 

J. Skelly Wright

Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit 

dissented from the court’s 2–1 ruling reversing Judge Gesell of the district court and imposing a temporary restraining order on The Washington Post, halting its publication of the 

Pentagon Papers. Wright began his opinion by lamenting, “This is a sad day for America. 

Today, for the first time in the two hundred years of our history, the executive department has succeeded in stopping the presses. It has enlisted 

the judiciary in the suppression of our most precious freedom.”

Wright was born on January 14, 1911, in New Orleans, Louisiana, and spent most of his life in that city. He completed both his 

undergraduate and legal studies at Loyola University in New Orleans, 

receiving his law degree in 1934. After several years teaching at the high 

school and then the university level, Wright went to work as an assistant 

U.S. attorney in the Eastern District of Louisiana. He held that position 

between 1937 and 1946, interrupted by a three-year stint as an officer in the Coast Guard 

during World War II. After a brief time in private practice shortly after the war, Wright was 

appointed U.S. attorney for the district in 1948; he remained in that job for only a year 

before being appointed to the federal bench by President Truman.

During his nearly thirteen years on the U.S. District Court for the Eastern District 

of Louisiana, Wright was best known for his rulings in cases brought by the NAACP challenging racial segregation and discrimination in Louisiana. In particular, Wright issued 

decisions permitting African Americans to attend the undergraduate school and law school 

at Louisiana State University, desegregating the city parks and buses of New Orleans, allowing interracial sporting events, and restoring hundreds of African-American voters to 

voting rolls. Most controversial was Wright’s decision ordering the desegregation of New 

Orleans public schools in 1960, a ruling that caused him to be reviled among segregationists throughout the state.

In 1962, President John F. Kennedy appointed Wright to the U.S. Court of Appeals 

for the District of Columbia Circuit, removing him from the turmoil he faced in New Orleans. In his role as an appellate judge, he continued to issue decisions aimed at eliminating 

Wright
22

Federal Trials and Great Debates in United States History

racial discrimination, such as a ruling that classified as discriminatory the segregation of 

Washington, D.C., public schools resulting from residential patterns. Wright served as an 

active judge on the court of appeals until 1986 and as a senior judge for two years after 

that. He died on August 6, 1988, at the age of seventy-seven.

Hugo Black

Supreme Court Justice Hugo Black wrote the strongest concurring opinion in the Pentagon Papers case. Consistent with his absolutist position on the sanctity of free speech, 

Black wrote, “I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and 

continuing violation of the First Amendment.” Black stressed that a free 

press was absolutely essential to democracy and asserted that in reporting on the Pentagon Papers, the Times and the Post “nobly did precisely 

that which the Founders hoped and trusted they would do.” His opinion also contained a pointed criticism of the Vietnam War: “among the 

responsibilities of a free press,” he wrote, “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.”

Hugo Lafayette Black was born on February 27, 1886, in Clay County, Alabama. 

He graduated from the University of Alabama School of Law in 1906 and spent the next 

two decades mainly in private practice. Black successfully campaigned for the U.S. Senate 

in 1926, securing a surprise victory in a three-way primary that virtually assured success 

in the general election because of the Democratic Party’s dominance in Alabama. In the 

Senate, Black eventually established himself as a critic of the Hoover administration’s attempts to battle the Great Depression and subsequently became an ally of Franklin Roosevelt’s New Deal administration. Black generally supported government interventions in 

the economy and distrusted the power of corporations but opposed measures designed to 

secure racial justice. 

When Roosevelt nominated Black to the Supreme Court in 1937, the latter’s previous opposition to federal antilynching legislation only briefly held up his confirmation 

hearings, and he was confirmed by a 63–16 majority. The subsequent revelation that Black 

had once been a member of the Ku Klux Klan, however, caused a more sustained political 

uproar and forced Black to take the unusual step of making a radio address to the nation 

to explain his past. Black’s thirty-four-year tenure on the court belied accusations that he 

was a racist, as he became a respected civil libertarian and incurred the wrath of his native 

South in decisions supporting desegregation and banning mandatory school prayer. Black 

retired from active service on the Court on September 17, 1971, following a series of 

strokes, and died eight days later at the age of eighty-five.

Black
23

The Pentagon Papers in the Federal Courts

William Brennan

Supreme Court Justice William J. Brennan, Jr., voted with the majority in the Pentagon 

Papers case, allowing publication of the papers to continue. His concurring opinion did 

not go quite as far as those of Justices Hugo Black and William O. 

Douglas, both of whom asserted that the First Amendment stood as 

an absolute bar to a prior restraint on publication. Brennan set a high 

standard for such a restraint, however, writing that a halt on publication 

could be justified only by “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence 

of an event kindred to imperiling the safety of a transport already at sea.” 

Brennan was born into a family of Irish-Catholic immigrants on 

April 25, 1906, in Newark, New Jersey. He attended the University of 

Pennsylvania and Harvard Law School, graduating from the latter in 1931. Brennan then 

joined a New Jersey law firm and practiced labor law until he enrolled in the army during 

World War II. Leaving the armed forces in 1945 at the rank of colonel, Brennan returned 

to private practice before beginning a career as a New Jersey state court judge. He served 

on the Superior Court from 1949 to 1952 and then as a justice on the state Supreme Court 

from 1952 to 1956. In October 1956, President Dwight Eisenhower made Brennan a recess appointee to the Supreme Court of the United States, and the Senate confirmed him 

the following year.

One of the longest-serving and most influential justices in the Court’s history, Brennan was known as a liberal devoted to the protection of individual freedoms. In addition 

to his vote on the Pentagon Papers case, Brennan authored landmark opinions on reapportionment, criminal procedure, and First-Amendment issues such as libel, the free exercise 

of religion, and flag burning. Brennan retired from the Court in 1990 after thirty-four 

years of service. He died on July 24, 1997, at the age of ninety-one. 

Potter Stewart

Supreme Court Justice Potter Stewart’s concurring opinion in the Pentagon Papers case 

recognized the tension between the necessity for “a press that is alert, aware, and free,” 

and the “confidentiality and secrecy” required for “the successful conduct of international 

diplomacy and the maintenance of an effective national defense.” Stewart believed that the 

executive branch, because of its responsibility for foreign affairs and national security, was 

better situated than the judiciary to ensure the safety of classified information. Preventing 

the publication of damaging or sensitive information was, he asserted, “a function that the 

Constitution gave to the Executive, not the Judiciary.” 

Stewart was born into a family with a judicial pedigree: his father had been mayor 

of Cincinnati and then a justice on the Ohio State Supreme Court. Born on January 23, 

Brennan
24

Federal Trials and Great Debates in United States History

1915, in Jackson, Michigan, Stewart grew up in Cincinnati before attending boarding 

school in Connecticut. He attended Cambridge University in England on a yearlong fellowship before receiving undergraduate and law degrees at Yale University. He entered 

private practice with a New York City law firm after graduating in 1941. The next year, he 

joined the United States Naval Reserves, serving aboard oil tankers for 

much of World War II. He returned to New York after the war, before 

moving in 1947 to Cincinnati, where he continued to work in private 

practice in addition to serving on the city council and as vice mayor.

In 1954, Stewart was appointed to the U.S. Court of Appeals for 

the Sixth Circuit at the unusually young age of thirty-nine. President 

Dwight Eisenhower gave Stewart a recess appointment to the Supreme 

Court of the United States in 1958 (the last recess appointment of a 

Supreme Court justice to date). He was confirmed by the Senate the 

next year. On the Court, Stewart established a reputation as a moderate justice capable of 

building coalitions and of controlling the shape of legal development with skillfully crafted 

concurring opinions. He was noted for his pithy prose and pragmatic reasoning. Stewart 

retired from active service on the Supreme Court in 1981 but continued to hear a reduced 

number of cases in the lower courts. He died at age seventy on December 7, 1985, after 

suffering a stroke.

Warren Burger

Chief Justice Warren Burger was one of three Supreme Court justices to dissent in the Pentagon Papers case, voting to grant the government’s request for a preliminary injunction 

against further publication. Burger objected to the “unseemly haste” 

with which the case had been conducted, blaming The New York Times 

for not disclosing to the government that it had the Pentagon Papers until several months after it had obtained them. Had the Times informed 

the government of what it intended to publish, he wrote, the parties 

“might well have narrowed the area of disagreement as to what was and 

was not publishable, leaving the remainder to be resolved in orderly 

litigation, if necessary.” 

Burger was born on September 17, 1907, in St. Paul, Minnesota. 

After graduating from the St. Paul College of Law in 1931, he spent the next two decades 

in private practice in St. Paul. Burger was active in Minnesota’s Republican Party and was a 

strong supporter of Dwight Eisenhower’s presidential campaign in 1952. In 1953, Eisenhower appointed him an assistant attorney general in the Civil Litigation Division of the 

Department of Justice, and three years later, Eisenhower appointed him to the U.S. Court 

of Appeals for the District of Columbia Circuit. When Chief Justice Earl Warren retired 

Stewart

Burger
25

The Pentagon Papers in the Federal Courts

in June 1969, President Richard Nixon appointed Burger to succeed him. Nixon was attracted by Burger’s reputation as a “law and order” conservative who had been critical of 

the Warren Court’s expansion of the rights of criminal defendants. The President and other 

Republicans hoped that Burger’s leadership would steer the Supreme Court away from the 

liberalism that characterized the Warren era.

Despite Burger’s conservatism, the Court issued several landmark decisions during 

his tenure that represented victories for liberal causes. Among these was Roe v. Wade 

(1973), in which Burger voted with the majority in protecting the right of women to 

obtain abortions. In 1974, Burger wrote the opinion in United States v. Nixon holding 

that the President could not assert executive privilege with respect to White House tape 

recordings, a decision seen by many as a precursor to Nixon’s resignation. Among Burger’s 

more conservative opinions was his concurrence in Bowers v. Hardwick (1986), in which 

the Court upheld Georgia’s criminalization of sodomy. 

Burger served as Chief Justice for seventeen years before retiring from active service 

in 1986, when William Rehnquist was elevated from associate justice to succeed him. He 

died on June 25, 1995, at the age of eighty-seven. 

John Marshall Harlan II

Supreme Court Justice John Marshall Harlan was one of three justices to vote in favor of 

imposing a preliminary injunction against further publication of the Pentagon Papers. 

His dissenting opinion was joined by Chief Justice Warren Burger and 

Justice Harry Blackmun, making it the only opinion endorsed by all 

of the dissenting justices. Like the other dissenters, Harlan took issue 

with the speed with which the litigation had been conducted, and he 

asserted that the scope of judicial review should be extremely narrow in 

cases where the executive was exercising its authority over foreign affairs. 

It was not the role of the courts, he believed, to override the executive’s 

determination that disclosure of the Pentagon Papers would irreparably 

harm national security. 

Harlan was born in Chicago, Illinois, on May 20, 1899, the scion of a prominent 

and affluent family of lawyers. His grandfather and namesake, Justice John Marshall Harlan, was one of the most celebrated justices in the Supreme Court’s history (the II was not 

part of Harlan’s legal name but is generally used to distinguish him from his grandfather). 

Harlan attended Princeton University and was a Rhodes Scholar at Balliol College, Oxford, where he began to study law. In 1924, he graduated from New York Law School and 

entered practice with a prominent Wall Street firm. He continued this practice until 1954, 

taking several breaks to work as a government lawyer. During World War II, Harlan served 

as chief of the Air Corps’ Operations Analysis Section. On his return to private practice 

Harlan
26

Federal Trials and Great Debates in United States History

in 1945, he established a national reputation as a litigator, arguing several cases before the 

Supreme Court. 

On February 10, 1954, Harlan was appointed to the U.S. Court of Appeals for the 

Second Circuit. Less than a year later, President Dwight Eisenhower nominated Harlan to 

the Supreme Court. Although his confirmation was initially delayed by debate over Harlan’s supposedly internationalist leanings and controversy over the Court’s recent decision 

in Brown v. Board of Education (1954) (the first Justice Harlan had famously argued against 

the constitutionality of segregation in the late nineteenth century), he was confirmed by 

the Senate and joined the Court on March 17, 1955. Harlan’s restrained view of the federal 

courts’ role in the American system conflicted with the approaches of many of his more 

avowedly liberal colleagues on the Warren Court who saw the Supreme Court as an engine 

of social progress. Harlan’s focus on procedural fairness over substantive results led some 

commentators to label him a conservative voice on the Court. In part as a result of these 

differences, and perhaps because of his grandfather’s dissents in infamous cases such as 

Plessy v. Ferguson (1896) and Lochner v. New York (1905), Harlan developed a reputation 

as the Warren Court’s “great dissenter.” Though he differed with his colleagues on several 

major decisions, Harlan was also widely respected for writing lucid, principled opinions 

that frequently cut across partisan lines. Toward the end of his tenure, Harlan suffered 

from cancer and failing eyesight. His opinion in the Pentagon Papers case was his last. He 

retired from active service in September 1971, and died on December 29, 1971, at the age 

of seventy-two.

Lawyers

Erwin Griswold

Erwin Griswold served as solicitor general, the Department of Justice official designated 

to represent the United States government before the Supreme Court, from 1967 to 1973 

under Presidents Johnson and Nixon. It was in this capacity that he argued the government’s case that preliminary injunctions should be issued to halt further publication of the 

Pentagon Papers by The New York Times and The Washington Post. After being requested 

to do so by Attorney General John Mitchell, Griswold first argued before the U.S. Court 

of Appeals for the District of Columbia Circuit in the Post case (an unusual task for the 

solicitor general), and subsequently before the Supreme Court.

Griswold was born on July 14, 1904, in East Cleveland, Ohio. After graduating from 

Oberlin College in 1925, he attended Harvard Law School, from which he graduated with 

honors in 1928. He practiced law in Cleveland briefly before becoming a staff lawyer in 

the office of the U.S. solicitor general. In 1934, Griswold returned to Harvard Law as a 

professor and also served as dean from 1946 until he became the solicitor general in 1967. 
27

The Pentagon Papers in the Federal Courts

During this time, Griswold was, according to his obituary in The New York Times, “a dominant figure in American legal education.”

In the 1950s, Griswold became associated with two issues of national controversy. 

He emerged as a prominent critic of Senator Joseph McCarthy, particularly with respect to 

McCarthy’s denunciation of witnesses’ invocation of their Fifth Amendment right against self-incrimination. Later, he testified as an expert 

witness for the NAACP in segregation cases that its legal director, future 

Supreme Court justice Thurgood Marshall, brought to lay the foundation for Brown v. Board of Education. In the 1960s, Griswold served 

on the U.S. Civil Rights Commission under Presidents Kennedy and 

Johnson and publicly supported the Supreme Court’s expansion of the 

rights of criminal defendants.

In 1973, Griswold returned to private practice in Washington, 

D.C., and continued to argue cases before the Supreme Court. In later years, he stated 

that while he believed at the time that publication of the Pentagon Papers would endanger 

national security, he felt in hindsight that the disclosures had caused no harm. Griswold 

died November 19, 1994, at the age of ninety.

Alexander Bickel

Alexander M. Bickel, a Yale law professor at the time of the Pentagon Papers case, was the 

lead attorney for The New York Times. His initial appearance before Judge Murray Gurfein 

of the U.S. District Court for the Southern District of New York was his first time arguing 

a case in court. Soon afterwards, he argued successfully before the Supreme Court that publication of the papers should be allowed to continue. Notably, Bickel made the strategic decision to concede that the First Amendment might allow for a prior restraint on publication 

in some circumstances but argued that those circumstances did not exist with respect to the 

Pentagon Papers. An absolutist position that a prior restraint was never permissible, Bickel 

believed, was unlikely to gain the support of a majority of the Supreme Court.

Bickel was born on December 17, 1924, in Bucharest, Romania, and immigrated 

to the United States at the age of fourteen, settling with his family in New York City. He 

became a naturalized U.S. citizen in 1943 and served in the Army during World War II. 

After graduating from City College in 1947, he attended Harvard Law School, graduating 

with honors in 1949. Soon afterward, he served as a law officer in the State Department 

and then, from 1952 to 1953, as a clerk to Supreme Court justice Felix Frankfurter. Frankfurter became a significant influence on Bickel, and it was during Bickel’s clerkship that he 

developed a strong interest in constitutional law.

In 1956, Bickel joined the faculty of Yale Law School, becoming a full professor in 

1960. During his time at Yale he was considered a leading expert on the Constitution, 

Griswold

Department of Justice
28

Federal Trials and Great Debates in United States History

writing several books on the federal judiciary and the Supreme Court. Despite being a 

liberal Democrat, Bickel was critical of what he saw as the judicial activism of the Warren 

Court. In 1972, he was appointed by Chief Justice Warren Burger to a committee that recommended the establishment of a national court of appeals to reduce the Supreme Court’s 

caseload. Occasionally mentioned as a candidate for the Supreme Court himself, Bickel 

was still a professor at Yale when he died on November 7, 1974, at the age of forty-nine.

William Glendon

William R. Glendon, a senior partner at the law firm of Rogers & Wells, was the lead 

attorney for The Washington Post in the Pentagon Papers case. Along with Times counsel 

Alexander Bickel, he argued before the Supreme Court that no injunction should be issued 

to prevent further publication of the Pentagon papers. After the Court ruled in his client’s 

favor, Glendon expressed relief, describing the government’s attempt at censorship as putting “freedom of the press as we know it in the balance.”

Glendon was born in Medford, Massachusetts, on May 1, 1919, and grew up in 

nearby Stoneham. After graduating from Holy Cross College in 1941, he served in the 

U.S. Navy during World War II, participating in the invasions of North Africa, Italy, and 

France. After the war, he attended Georgetown Law School, graduating in 1947. He then 

served as an assistant district attorney in Washington, D.C., before entering private practice. In 1956, he moved to his firm’s New York City office.

Although Glendon was primarily a trial attorney, he argued two additional cases before the Supreme Court following the Pentagon Papers case. In 1977, he won a securities 

fraud case, and in 1985, he argued on behalf of the village of Scarsdale, New York, whose 

trustees had voted to ban the public display of a Christmas crèche. The Court split 4–4 in 

the latter case, maintaining the decision of the U.S. court of appeals permitting the crèche 

to remain. Later in 1985, Glendon was elected mayor of Scarsdale. Glendon continued to 

practice law until the age of seventy-two. He died on December 25, 2008, age eighty-nine. 

Other Important Figures

Robert McNamara

Robert McNamara served as Secretary of Defense under Presidents Kennedy and Johnson 

from 1961 to 1968. During these years, McNamara became the primary shaper of American policy in Vietnam. In 1967, he commissioned the Department of Defense study of the 

Vietnam War that came to be popularly known as the Pentagon Papers. McNamara later 

explained that he wished to ensure preservation of the historical record of the decisions 

made by political and military leaders prior to and during the war. Having come to see the 

war as a mistake, McNamara hoped that the study would help to prevent similar foreign 

policy missteps in the future. 
29

The Pentagon Papers in the Federal Courts

McNamara was born on June 9, 1916, in San Francisco, California. He studied at 

the University of California, Berkeley, and then at Harvard Business School. After a year 

with the accounting firm of Price, Waterhouse & Company, he returned to Harvard to 

teach business administration. During World War II, he enlisted in the Army Air Forces, 

serving in England and India and rising to the rank of lieutenant colonel.

In 1946, McNamara took a job with the Ford Motor Company, helping to turn 

around what was then a troubled company. He rose through the organization’s ranks 

quickly and was named president of the company, under chief executive 

Henry Ford II, in November 1960. It was only five weeks later, however, that President-Elect John F. Kennedy asked McNamara to join his 

incoming administration as the Secretary of Defense. When McNamara 

protested that he was not qualified for the job, Kennedy replied, “Look, 

Bob, I don’t think there’s any school for presidents either.”

In his early years at the Pentagon, McNamara dealt with Cold War 

events such as the Bay of Pigs invasion and the Cuban Missile Crisis. 

After the Gulf of Tonkin incident in August 1964, which led to a broad 

congressional authorization of the use of force against the communists in North Vietnam, 

his tenure was dominated by the Vietnam War. He was the chief architect of American 

strategy in Vietnam until his departure from the Defense Department in 1968, shaping 

policy to such an extent that many referred to the conflict as “McNamara’s War.” While he 

was initially optimistic about American prospects for victory, McNamara expressed doubts 

about the war in 1967, taking note of its growing unpopularity in the United States and 

urging President Johnson to negotiate a peaceful end to the conflict. His resistance to 

further escalation of the war put him at odds with both the President and military leaders, 

leading to McNamara’s resignation. 

After leaving office, McNamara became head of the World Bank, serving in that 

capacity until 1981. In retirement, he expressed regret over the Vietnam War and the 

role he had played in conducting it. He published a book, In Retrospect: The Tragedy and 

Lessons of Vietnam, in 1995, in which he admitted to having made many mistakes during 

his time at the Pentagon. McNamara was also the subject of the 2003 documentary, The 

Fog of War, for which he was interviewed extensively. He died on July 6, 2009, at the age 

of ninety-three.

Daniel Ellsberg

Daniel Ellsberg was the key figure in the Pentagon Papers case, although he was not directly involved in the federal government’s lawsuits against The New York Times and The 

Washington Post. It was Ellsberg, a former Department of Defense employee who had contributed to the Pentagon Papers, who leaked the secret documents to Times reporter Neil 

McNamara
30

Federal Trials and Great Debates in United States History

Sheehan in 1971. His actions set into motion the publication of the papers and the legal 

and political controversy that ensued. While the Pentagon Papers cases were pending in 

the federal courts in New York and Washington, Ellsberg was indicted in the U.S. District 

Court for the Central District of California on charges of espionage 

and theft. The case against him and co-defendant Anthony Russo was 

dismissed in 1973 by trial judge Matthew Byrne, after revelations of 

government misconduct that included illegal surveillance of Ellsberg by 

the FBI and a burglary at the office of Ellsberg’s psychiatrist by members 

of a special White House unit known as the “Plumbers.”

Ellsberg was born in 1931 in Chicago, Illinois, but grew up in 

Detroit, Michigan. After graduating with honors from Harvard University in 1952, Ellsberg studied at Cambridge University in England and 

then joined the U.S. Marines in 1954. In 1957, Ellsberg returned to Harvard, earning his 

Ph.D. in economics in 1962. During his time as a graduate student, he impressed Harvard 

professor Henry Kissinger (later President Nixon’s national security advisor and Secretary 

of State), when he delivered lectures on the use of irrational military threats to a seminar 

Kissinger taught.

In 1959, after being honorably discharged from the Marines, Ellsberg joined the 

RAND Corporation—a civilian research institute that performed work for the U.S. military—where he worked on issues related to nuclear war. Two years later, he began consulting for the Pentagon as well, and in 1964 he left RAND to work full-time for the Defense 

Department. His work at the Pentagon focused exclusively on the Vietnam War, and he 

helped to plan for the dispatch of U.S. ground troops to Vietnam in 1965. The following 

year, Ellsberg requested to go to Vietnam as a Marine company commander but was told 

he held too important a civilian position to be dispatched into combat. He went instead as 

part of a group from the State Department, studying the pacification program and going 

out on patrols with Army and Marine units, during which he was occasionally caught in 

combat.

Ellsberg’s time in Vietnam helped to change his views of the war, and by 1967, he 

had become disillusioned with American policy and convinced that the United States 

should withdraw from the war. That same year, he accepted a request to join the Pentagon 

Papers project, where he wrote about the Kennedy administration’s early Vietnam policy. 

In 1969, his stance against the war having deepened, he was asked by RAND to write a 

paper for Kissinger outlining the Nixon administration’s options in Vietnam. During his 

work for Kissinger, Ellsberg requested and was granted access to the entirety of the Pentagon Papers. Shortly thereafter, in the hopes of spurring a change in American foreign 

policy toward Vietnam, Ellsberg made the fateful decision to copy the documents in secret. 

Ellsberg
31

The Pentagon Papers in the Federal Courts

After trying unsuccessfully to publicize the Pentagon Papers though government channels, 

he began in March 1971 to leak them to the Times. 

Since the end of the Vietnam War, Ellsberg has continued to play a role in public 

life as an author, lecturer, and activist. Much of his time has been devoted to campaigning 

against the proliferation of nuclear weapons. He has written books on that topic as well 

as a memoir concerning his experience with the Vietnam War and the Pentagon Papers. 

Neil Sheehan

Cornelius Mahoney “Neil” Sheehan of the Washington, D.C., bureau of The New York 

Times was the first reporter to whom Daniel Ellsberg leaked the Pentagon Papers in March 

1971. As a result, it was Sheehan’s byline that appeared on the first articles about the secret 

Vietnam study. After Ellsberg gave him access to the papers in Cambridge, Massachusetts, 

Sheehan made copies and took them to Washington, D.C., where he spent weeks in a hotel 

room studying them in secret with a Times editor. After Sheehan had digested the material 

and prepared his first reports, extensive deliberations ensued among Times management 

about whether to go ahead with publication. Sheehan’s first article on the Pentagon Papers 

was published on June 13, 1971. His reporting earned the Times a Pulitzer Prize in 1972.

Sheehan was born in Holyoke, Massachusetts, on October 27, 1936, and was raised 

on a dairy farm. He attended Harvard University, where he edited a literary magazine. 

Upon graduating in 1958, he joined the U.S. Army and was stationed in Korea and Japan. 

While in Japan, he began working for the Tokyo office of the United Press International 

wire service, and after his discharge from the military, he became a full-time UPI reporter. 

From 1962 to 1964, he worked in UPI’s Saigon bureau, covering the war in Vietnam. He 

then joined The New York Times, which eventually sent him back to Vietnam. Sheehan’s 

reporting emphasized the desire of the Vietnamese people to be free from foreign occupation, a stance that was viewed unfavorably by the U.S. government. It was during this 

assignment that Sheehan became friendly with Daniel Ellsberg, who was in the country 

working for the State Department. After returning to the United States, Sheehan joined 

the paper’s Washington bureau, covering the Pentagon and then the White House. 

In 1972, Sheehan published his first book about the Vietnam War and took a leave 

of absence from the Times to begin a book about John Paul Vann, a U.S. Army officer who 

played a prominent role in the war. The book was delayed significantly after Sheehan was 

seriously injured in a 1974 car accident, and two years later, he resigned from the paper. Finally published in 1988, A Bright Shining Lie: John Paul Vann and America in Vietnam won 

a Pulitzer Prize and a National Book Award. In 2009, Sheehan published another book, A 

Fiery Peace in a Cold War, about the U.S. intercontinental ballistic missile program. 

The Pentagon Papers in the Federal Courts

4

Media Coverage and Public Debates

Like the Vietnam War itself, both the publication of the Pentagon Papers and the resulting decisions of the federal courts were 

extremely divisive. Many Americans expressed anger at The New 

York Times and The Washington Post for what they saw as an immoral act: publishing documents that Daniel Ellsberg had leaked 

illegally. Others echoed the argument the federal government had 

made in attempting to stop publication of the Pentagon Papers, 

namely that the disclosures had endangered national security. The 

author of a letter to the Times was especially critical of the publication of documents regarding American relations with other nations. “The inclusion of these references,” he wrote, “might cause 

some loss of confidence in the reliability of the United States as 

a participant in international diplomacy.” Some of the public’s 

anger was aimed at Neil Sheehan, the Times reporter to whom 

The New York Times pressroom (archival photo).
34

Federal Trials and Great Debates in United States History

Ellsberg initially leaked the Pentagon Papers and who wrote most of the newspaper’s coverage of them. 

Opponents of the Pentagon Papers’ exposure also directed criticism at the judges and 

justices whose rulings had allowed publication to continue. These objections, like those 

aimed at the newspapers, were based primarily on the fact that the documents had been 

obtained illegally and the belief that their publication had endangered national security. 

The writer of a letter to Justice Harry Blackmun (who had dissented from the Supreme 

Court’s ruling in favor of publication) complained, “Presumably, any publication can now 

publish anything it gets its hands on, even if it means a death sentence for the nation.” 

Some critics focused on what they believed was an intrusion upon the separation of powers. By allowing the publication of documents the executive branch had deemed classified, 

they argued, the federal judiciary had undermined the President’s role as the person having 

primary responsibility for protecting national security and conducting foreign affairs.

Reflecting the deeply divided nature of public opinion, both of the newspapers, as 

well as the jurists involved, also received letters from the public supporting the release of 

the Pentagon Papers. A large number of Americans saw the episode as a triumph of the 

First Amendment and a vindication of the freedom of the press. The author of a letter to 

Justice William Douglas, written a few days before the Supreme Court’s ruling, expressed 

the hope that the Court would not permit the government “to take over the press and tell 

them what to print or not to print.” Neil Sheehan received grateful letters, such as one 

thanking him for “the invaluable service you have rendered” and “the wonderful job you 

have done.” Letters to Post editor Benjamin Bradlee praised his “courageous stand” and 

“real patriotism.” One correspondent asserted that the “dangers to this democratic republic of an ill-informed or misinformed populace far outweigh the ‘horrendous’ dangers to 

national security and defense put forth by those ... who urged that the public be kept in 

the dark.”

Much of the enthusiasm for the publication of the Pentagon Papers derived from 

hostility toward U.S. participation in the Vietnam War and a feeling that the government 

had deceived the American public about the conduct and progress of the war. A letter to 

Justice Blackmun stressed that it was “the discredited Government officials, bureaucrats, 

generals, and ‘intellectuals,’” and not those who disclosed the Pentagon Papers, who were 

to blame for the “tragic results” in Vietnam. A writer to the Times criticized the “extraordinary and continuous pattern of deception and self-deception” the Pentagon Papers had 

revealed. “The real scandal is not Dr. Ellsberg’s dramatic opening of the curtain,” he continued. “It is what has been going on behind it.”

The Pentagon Papers also sparked discussion within Congress. Prior to the Supreme 

Court’s ruling, twenty-seven members of Congress submitted an amicus curiae brief ask-
35

The Pentagon Papers in the Federal Courts

ing the Court not to restrain publication of the papers. Citing a fear of growing executive 

power, the brief argued for a “legislative right to know,” as well as legislators’ “particular 

and profound interest in having their constituents obtain all the information necessary to 

perform their functions as voters and citizens.” The Foreign Operations and Government 

Information Subcommittee of the House Committee on Government Operations held 

hearings on the government’s handling of sensitive information while the Pentagon Papers 

cases were pending in court. The subcommittee’s chair, Democrat William S. Moorhead 

of Pennsylvania, cited the Pentagon Papers as an example of unwarranted “restrictions by 

the executive on the free flow of information to the Congress and to the public through 

the mass media.” 

Members of Congress opposed to the Vietnam War, such as Senator George McGovern of South Dakota, were angered by the revelations contained in the papers. After 

reading the initial Times coverage, McGovern accused former Secretary of Defense Robert 

McNamara of lying to Congress about the conduct of the war. The documents clearly 

showed, McGovern argued, that the Johnson administration “did not adequately inform 

the American people and the Congress about the policy it was pursuing” in Vietnam. The 

Nixon administration, he lamented, “has joined in the effort to suppress the truth.” The 

day before the Supreme Court issued its ruling, Senator Mike Gravel of Alaska convened a 

hearing of the Buildings and Grounds Subcommittee, which he chaired, for the purpose of 

reading a portion of the Pentagon Papers and having the remainder entered into the formal 

hearing record. In October 1971, Beacon Press published “The Senator Gravel Edition” of 

the Pentagon Papers.

Following publication of the Pentagon Papers in The New York Times and The Washington Post, other major newspapers, such as The Boston Globe, the Chicago Sun-Times, 

and the St. Louis Post-Dispatch obtained copies of the documents and began to report on 

them as well. Unsurprisingly, press coverage of the Pentagon Papers litigation was weighted 

mostly in favor of the documents’ publication, although this sentiment was not unanimous. The Wall Street Journal came out strongly in favor of the right to publish, calling 

the freedom “to speak and publish without prior restraint or censorship” a “fundamental 

principle of our democracy.” An editorial in the St. Louis Post-Dispatch called Attorney 

General John Mitchell’s attempt to halt publication a “monumental blunder” that showed 

the Nixon administration’s hostility to the First Amendment. The Detroit News, on the 

other hand, accused The New York Times of acting irresponsibly in publishing the Pentagon 

Papers. No editor, its editorial proclaimed, should have the “power to substitute his personal definition of national interest as a basis for declassification.” Likewise, conservative 

columnist William F. Buckley noted that while the American people routinely pass judgment on their elected officials at the ballot box, “[w]e are not given such power over The 
36

Federal Trials and Great Debates in United States History

Times and The Washington Post.” 

The Pentagon Papers case has lived on in popular culture. It has been the subject 

of a large number of books, including a memoir by Daniel Ellsberg. In 2010, PBS aired 

a documentary entitled “The Most Dangerous Man in America: Daniel Ellsberg and the 

Pentagon Papers.” The Post, Steven Spielberg’s 2017 film recounting the role of The Washington Post in publishing the papers, received critical acclaim and was nominated for an 

Academy Award for Best Picture. 
The Pentagon Papers in the Federal Courts

5

Historical Documents

The Publication of the Pentagon Papers

Neil Sheehan, memo to Max Frankel, March 26, 19711

In March 1971, shortly after receiving the Pentagon Papers from 

Daniel Ellsberg, Times reporter Neil Sheehan prepared a memo 

for Washington bureau chief Max Frankel, laying out the points he 

wished to emphasize in the articles he was to write on the Pentagon 

report. Among Sheehan’s observations were that President Lyndon 

Johnson had planned to escalate the war despite his claims to the 

contrary, that Pentagon officials seemingly gave little thought to the 

human costs of the war, and that no one involved in making U.S. 

policy seriously considered, during the time covered by the study, the 

possibility of withdrawal from Vietnam. 

Memo to: Max Frankel

Ex: Sheehan

Subject: Inside History of Vietnam War

... 

1. The first piece in whatever series we decide on must give the 

reader a sense of the scope and flavor of the entire thing.

2. The first piece, and probably subsequent pieces, must include, in the narrative, mileposts to orient the reader historically. Probably a chronology of u.s. involvement in vietnam 

(from the public record) should accompany each piece.)

1. Neil Sheehan papers (on file with the Library of Congress).
38

Federal Trials and Great Debates in United States History

3. Program of south vietnamese covert and overt operations (the 34/A OPS) were NOT 

a SVN operation except that SVN personnel were used. The whole operation was 

American—down to almost daily approval of moves by the White House. After 

Tonkin Gulf, U.S. adopted various tactics designed to provoke the enemy into actions that could then be “retaliated against.”

4. Johnson said “We didn’t seek a wider war.” But the entire strategy of bombing was 

designed as a wider war. It was assumed from the earliest stages of planning that there 

would be bombing of the north.

5. The FIREBREAKS. The president and the pressures of the bureaucracy. Once a target list was prepared, it was easier to keep following it than to change direction. Also, 

since the plans have been made, we might as well use ’em. There is a great deal of 

evidence that BUREAUCRATIC MOMENTUM was an important factor in everything, and this provides excellent insight into how government works.

6. There was total rejection, on all sides, of any idea of withdrawal from Vietnam. It was 

just not part of the considerations, from the beginning. And the evidence is clearer 

than it has ever been that the u.s. was doing what it was doing in Vietnam strictly—

and unequivocally—for u.s. purposes. South Vietnamese welfare or interests simply 

were not factors in u.s. thinking, except when SVN attitudes got in the way of u.s. 

policy. In which case, SVN thinking was considered only because we needed them 

(not they us, as much) as a cover for our operations.

7. Startlingly clear is the absence of moral or human considerations in the decision process in any of the material so far examined. The personalities involved, the bureaucratic method, the military requirements—all of these no doubt are partial reasons 

for this lack of “humanity” in these mss. The contrast with the popular understanding of the war as something that affects—kills—human beings, is fascinating.

8. As mentioned above, but worthy of special attention and extended treatment, is the 

clear evidence that pressure on Hanoi would not dissuade Hanoi from helping the 

VC, and the clear evidence that this was realized throughout the administration but 

that the pressure was nevertheless exerted.

9. Recognition that the roots of the insurgency were in the south.

... 

17.The need to keep bolstering whatever SVN government was in power at the moment—not for the purposes of the SVN, but for u.s. purposes. The clear feeling 

throughout that the South Vietnamese were mostly an annoyance, and that u.s. policy would have been easier to carry out without such annoyances.
39

The Pentagon Papers in the Federal Courts

The New York Times, first article on the Pentagon Papers, June 13, 19712

In the first of three articles published before the U.S. District Court for the Southern District 

of New York halted publication with a temporary restraining order, The New York Times on 

June 13 published a summary of the broad findings of the Pentagon’s study and a more detailed account of the events leading up to the August 1964 Tonkin Gulf Resolution, by which 

Congress granted President Lyndon Johnson broad authority to conduct military operations in 

Vietnam. The resolution followed trumped-up reports of North Vietnamese attacks—allegedly 

unprovoked—upon American vessels in the Gulf of Tonkin. Contrary to the administration’s 

public statements, however, U.S. forces had for months been carrying out secret attacks on the 

North—a “covert war,” as the Times described it—in hopes of provoking a response that might 

justify U.S retaliation. Far from being a spontaneous response to North Vietnamese aggression, 

the Tonkin Gulf Resolution had already been drawn up in principle; the Johnson administration had been awaiting an opportune time to introduce it. Because the resolution became the 

basis for the escalation of American military operations in Vietnam into a full-fledged war, the 

revelations about the administration’s deception threatened to undermine public support for 

American participation in the war.

A massive study of how the United States went to war in Indochina, conducted by the 

Pentagon three years ago, demonstrates that four administrations progressively developed 

a sense of commitment to a non-Communist Vietnam, a readiness to fight the North to 

protect the South, and an ultimate frustration with this effort—to a much greater extent 

than their public statements acknowledged at the time....

The study led its 30 to 40 authors and researchers to many broad conclusions and 

specific findings, including the following:

• That the Truman Administration’s decision to give military aid to France in her colonial war against the Communist-led Vietminh “directly involved” the United States 

in Vietnam and “set” the course of American policy.

• That the Eisenhower Administration’s decision to rescue a fledgling South Vietnam 

from a Communist takeover and attempt to undermine the new Communist regime 

of North Vietnam gave the Administration a “direct role in the ultimate breakdown 

of the Geneva settlement” for Indochina in 1954.

• That the Kennedy Administration, though ultimately spared from major escalation 

decisions by the death of its leader, transformed a policy of “limited-risk gamble,” 

which it inherited, into a “broad commitment” that left President Johnson with a 

choice between more war and withdrawal.

2. Neil Sheehan, Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement, N.Y. Times, 

June 13, 1971, at 1.
40

Federal Trials and Great Debates in United States History

• That the Johnson Administration, though the President was reluctant and hesitant 

to take the final decisions, intensified the covert warfare against North Vietnam and 

began planning in the spring of 1964 to wage overt war, a full year before it publicly 

revealed the depth of its involvement and its fear of defeat.

• That this campaign of growing clandestine military pressure through 1964 and the 

expanding program of bombing North Vietnam in 1965 were begun despite the 

judgment of the Government’s intelligence community that the measures would not 

cause Hanoi to cease its support of the Vietcong insurgency in the South, and that 

the bombing was deemed militarily ineffective within a few months.

• That these four succeeding administrations built up the American political, military and psychological stakes in Indochina, often more deeply than they realized at 

the time, with large-scale military equipment to the French in 1950; with acts of 

sabotage and terror warfare against North Vietnam beginning in 1954; with moves 

that encouraged and abetted the overthrow of President Ngo Dinh Diem of South 

Vietnam in 1963; with plans, pledges and threats of further action that sprang to life 

in the Tonkin Gulf clashes in August, 1964; with the careful preparation of public 

opinion for the years of open warfare that were to follow; and with the calculation 

in 1965, as the planes and troops were openly committed to sustained combat, that 

neither accommodation inside South Vietnam nor early negotiations with North 

Vietnam would achieve the desired result.

The Washington Post, first article on the Pentagon Papers, June 18, 19713

After obtaining a copy of the Pentagon Papers, The Washington Post began its own series of 

articles on June 18, three days after the issuance of a temporary restraining order halted publication by The New York Times. The Post’s first article focused on the successful efforts of the 

Eisenhower administration to undermine popular elections in Vietnam following the Geneva 

Conference of 1954, thus revealing both the roots of American involvement in Vietnam and the 

long pattern of government secrecy and misrepresentation. 

The Eisenhower administration, fearful that elections throughout Vietnam would bring 

victory to Ho Chi Minh, fought hard but in vain at the 1954 Geneva Conference to reduce the possibility that the conference would call for such elections.

But the following year it was South Vietnamese President Ngo Dinh Diem, far more 

than the American government, who was responsible for the elections’ not taking place.

3. Chalmers M. Roberts, Documents Reveal U.S. Effort In ’54 to Delay Viet Election, Wash. Post, June 18, 1971, 

at A1.
41

The Pentagon Papers in the Federal Courts

 Diem flatly refused even to discuss the elections with the Communist regime in Hanoi.... 

A March [1954] memorandum from the Chairman of the Joint Chiefs of Staff, 

Adm. Arthur Radford, to Secretary of Defense Charles Wilson on the JCS views about the 

then-impending negotiations said this about “establishment of a coalition government”:

“The acceptance of a settlement based on the establishment of a coalition government in one or more of the Associated States [Vietnam, Laos and Cambodia] would open 

the way for the ultimate seizure of control by the Communists under conditions which 

might preclude timely and effective external assistance in the prevention of such seizure.”

In a paragraph about “self-determination through free elections,” the JCS said in 

part:

“The Communists, by virtue of their superior capability in the field of propaganda, could readily pervert the issue as being a choice between national independence and 

French colonial rule. Furthermore, it would be militarily infeasible to prevent widespread 

intimidation of voters by Communist partisans. While it is obviously impossible to make a 

dependable forecast as to the outcome of a free election, current intelligence leads the Joint 

Chiefs of Staff to the belief that a settlement based upon free elections would be attended 

by almost certain loss of the Associated States to Communist control.” ... 

By the time the Geneva Conference opened, as has been known for many years, the 

United States had actively considered the idea of military intervention.... 

President Eisenhower approved the policy statement set at the National Security 

Council table [in January 1954].... 

The immediate aim was to help the French by expediting “and if necessary” increasing aid, to “assist them in: 

“a. An aggressive military, political and psychological program, including covert operations, to eliminate organized Viet Minh forces by mid-1955.

“b. Developing indigenous armed forces, including logistical and administrative services, which will eventually be capable of maintaining internal security without assistance 

from French units.” ...

The NSC paper noted that if such actions as those outlined were taken “the United 

States should recognize that it may become involved in an all-out war with Communist 

China and possibly with the USSR and the rest of the Soviet bloc, and should therefore 

proceed to take large-scale mobilization measures.”
42

Federal Trials and Great Debates in United States History

The Response of the Nixon Administration

Transcripts of President Richard Nixon’s conversations with aides regarding the Pentagon Papers and Daniel Ellsberg, June 13–29, 1971

As these transcriptions of his conversations with aides reveal, President Nixon’s first response to 

the publication of the Pentagon Papers focused on the “treasonable action” of the leakers and 

the potential political advantages of a report that so seriously criticized previous Democratic administrations. Following conversations with aide John Ehrlichman and Attorney General John 

Mitchell—both of whom warned that the government could be waiving its rights if it failed 

to act—the President decided to seek an injunction to restrain further publication. In a conversation with special counsel Charles Colson on June 29—the day before the Supreme Court 

allowed publication of the Pentagon Papers to continue—the President agreed that the prosecution of Daniel Ellsberg was needed to deter similar leaks of classified information in the future.

Richard Nixon/Henry Kissinger phone conversation, June 13, 19714

Nixon: [Deputy national security advisor Alexander] Haig was very disturbed by 

that New York Times thing ... Unconscionable damn thing for them to do.... 

Uh, fortunately it didn’t come out in our administration ... according to Haig, 

it’s all relates to the two previous administrations, is that correct?

Kissinger: That is right.... In public opinion, it actually, if anything, will help us 

a little bit, because this is a gold mine of showing how the previous administration got us in there.

Nixon: I didn’t read the thing [unclear], give me your view on that, in, in a word.

Kissinger: It just shows massive mismanagement of how we got there, and it 

[unclear] pins it all on Kennedy and Johnson.

Nixon: Huh, yeah [laughing?].... 

Kissinger: I think they outsmarted themselves, because they had put themselves, 

they had sort of tried to make it Nixon’s war, and what this [unclear] proves is 

that, if it’s anybody’s war, it’s Kennedy’s and Johnson’s.... 

Nixon: This is treasonable action on the part of the bastards that put it out.... 

Kissinger: It’s, it’s treasonable, there’s no question—it’s actionable, I’m absolutely 

certain that this violates all sorts of security laws.... 

Nixon: A congressional committee could call [the leaker] in, put him under oath, 

you know, and then he’s guilty of perjury if he lies.... because you gotta have 

the questions, and the investigations, and know what it is. Well we’re not gon4. National Security Archive, George Washington University, http://www2.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB48/transcript.pdf.
43

The Pentagon Papers in the Federal Courts

na get disturbed; these are, these things happen you know, [former secretary of

defense Clark] Clifford pops off, and this guy pops off. I would think it would 

infuriate Johnson, wouldn’t you?

Kissinger: Oh [unclear] basically, it doesn’t hurt us domestically, I think, I’m no 

expert on that, but no one reading this can then say, uh, that this president got 

us into trouble. [Unclear] this is an indictment of the previous administration. 

It hurts us with Hanoi, because it just shows how far our demoralization has 

gone.

Nixon: Good God.

Kissinger: But basically, uh, I think they, the decision [the North Vietnamese] 

have to make is do they want to settle with you, they know damn well that you 

are the one who held firm, and, and no matter how far they, much anyone else 

is demoralized doesn’t make any difference.... 

Nixon: But I wouldn’t, that’s [unclear], don’t worry about this, uh, Times thing; I 

just think we gotta expect that kind of crap, and, uh, we just plow ahead, plow 

ahead.

Richard Nixon/John Ehrlichman phone conversation, June 14, 19715

Ehrlichman: Hello, Mr., Mr. President, the attorney general has called a couple 

times, about these New York Times stories; and he’s advised by his people that 

unless he puts the Times on notice; uh, he’s probably gonna waive any right of 

prosecution against the newspaper; and he is calling now to see if you would 

approve his, uh, putting them on notice before their first edition for tomorrow 

comes out.... 

Nixon: Hell, I wouldn’t prosecute the Times. My view is to prosecute the Goddamn [expletive] that gave it to ’em.

Ehrlichman: Yeah, if you can find out who that is.

Nixon: Yeah. I know, I mean, uh, could the Times be prosecuted?

Ehrlichman: Apparently so.... 

Nixon: Hmm, does [Attorney General John Mitchell] have a judgment himself as 

to whether he wants to or not?

Ehrlichman: Yeah, I think he wants to ... 

Nixon: How do you feel about it?

Ehrlichman: Well, uh, I’d, I’d kinda like to have a cause of action against them in 

the sack in case we needed it. I’d hate to, I’d hate to waive something as good 

as that.

5. National Security Archive, George Washington University, http://www2.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB48/ehrlichman.pdf.
44

Federal Trials and Great Debates in United States History

Richard Nixon/John Mitchell phone conversation, June 14, 19716

Nixon: What is your advice on that, uh, Times thing John? Uh, you w- you would 

like to do it?

Mitchell: Uh, I would believe so, Mr. President, otherwise we will look a little 

foolish in not following through on our, uh, legal obligations, and, uh ... 

Nixon: Well look, look, as far as the Times is concerned, hell they’re our enemies—I think we just oughta do it, and anyway. Henry [Kissinger] tell him 

what you just heard from [former national security advisor Walt] Rostow. 

Kissinger: Well, Rostow called on behalf of [former President Lyndon] Johnson, 

and he said that it is Johnson’s strong view that this is an attack on the whole 

integrity of government ... if whole file cabinets can be stolen and then made 

available to the press, uh, you can’t have orderly government anymore. And 

he said if the president defends the integrity, any action we take he will back 

publicly.... 

Mitchell: Uh, we’ve got some information we’ve developed as to where these 

copies are, and who they’re likely to, uh, have leaked them, and the prime suspect, according to your friend Rostow, you’re quoting, is a gentleman by the 

name of Ellsberg, who is a left-winger that’s now with the Rand Corporation, 

who also have a set of these documents.... 

Nixon: Subpoena them. Christ, get them.

Richard Nixon/Charles Colson phone conversation, June 29, 19717

Nixon: Well, with—the point is that the Ellsberg case, however it comes out, is 

going to get all through this government among the intellectual types, and the 

people that have no loyalties, the idea that they will be the ones that’ll determine what’s good for this country.

Colson: That’s right.

Nixon: Goddamn it, they weren’t elected and they’re not going to determine it 

that way.

Colson: Well, and the other side of that problem, Mr. President, is that if you 

allow something like that to go unpunished, then you just encourage—

Nixon: Mm-hmm.

Colson: —an unending flow of it.

Nixon: That’s right.

Colson: And on the other hand, if you nail it hard, it helps to keep people—

6. National Security Archive, George Washington University, http://www2.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB48/mitchell.pdf.

7. Conversations Concerning the Daniel Ellsberg and the Pentagon Papers (June 22–30), Famous Trials, 

https://famous-trials.com/legacyftrials/ellsberg/nixononpp.html#Conversations_Concerning_the_Daniel.
45

The Pentagon Papers in the Federal Courts

Nixon: Right.

Colson: —in line and discourage others.... And the argument is, “Well [Ellsberg 

has] made a hero of himself, and the harder we hit him the more we build him 

up.” But the way I sized the fellow up—building him up doesn’t, doesn’t help 

the other side because he’s not an—

Nixon: Because he’s a natural enemy.

Colson: He’s not an appealing personality. He’s a damn good guy to be against.

Nixon: Mm-hmm. Mm-hmm.

Colson: We’ve had all sorts of reports as you know of his tie-in with other people. 

I think an awful lot of this will fall out.... 

Nixon: Of course, if you could get him tied in some with Communist groups 

that would be good.... That’s my guess, that he’s in with some subversives, you 

know.

The Court Proceedings Involving The New York Times and

The Washington Post

On June 14, 1971, the United States government filed suit in federal court seeking to stop 

The New York Times from publishing any more material from the stolen Pentagon Papers. 

The government requested a temporary restraining order—an immediate and short-term 

measure designed to freeze the status quo until the court had a chance to conduct an initial 

review of the evidence—as well as a preliminary injunction, a restraint of longer duration 

that would remain in effect until the completion of a trial. Judge Murray Gurfein, appointed to the bench by President Richard Nixon only a month earlier, granted on June 15 a 

temporary restraining order set to expire four days later.

The New York Times, brief submitted to U.S. District Court for the South- ern District of New York in opposition to government’s request for preliminary injunction, June 17, 19718

The brief submitted by The New York Times in the district court in New York argued that 

the government attorneys offered no evidence to support their allegation that publication of the 

Pentagon Papers would cause irreparable harm to national security.

The United States here seeks the remedy of a temporary injunction on the basis that it 

will assertedly suffer “irreparable harm” to its “defense interests” if the New York Times is 

not judicially forbidden to publish further articles such as those previously published. The 

8. United States v. N.Y. Times Co., 328 F. Supp. 324 (S.D.N.Y. 1971) (No. 71 Civ. 2662), copy of brief located 

in Gerhard Gesell papers (on file with the Library of Congress).
46

Federal Trials and Great Debates in United States History

moving papers of the United States purport to support the proposition that publication 

by the Times of further excerpts will “prejudice the defense interests of the United States 

and result in irreparable injury to the national defense.” ... Beyond those general allegations, thus far unsupported by a single fact presented to this Court, the United States has 

not made the slightest effort to prove that defense interests of the nation would in fact be 

harmed by publication of the series. The United States has not suggested that the articles 

thus far published have revealed information which can in any way endanger or injure 

American armed forces or that there is any prospect of future articles having this effect. 

The Times has not published sailing dates of troop transports, not published secret plans 

of future military maneuvers, not published data relating to weapons systems or the like. 

It has instead published part of an historical record and, we submit, in doing so has served 

the nation as the First Amendment intended it to.

Max Frankel, affidavit submitted to U.S. District Court for the Southern 

District of New York, June 17, 19719

Max Frankel, the chief of The New York Times’s Washington bureau, submitted an affidavit 

to the district court explaining that the media’s use of classified government information was not 

only routine but was essential to the operation of a free press.

1. Without the use of “secrets” that I shall attempt to explain in this affidavit, there 

could be no adequate diplomatic, military and political reporting of the kind our 

people take for granted, either abroad or in Washington and there could be no mature system of communication between the Government and the people. That is one 

reason why the sudden complaint by one party to these regular dealings strikes us as 

monstrous and hypocritical—unless it is essentially perfunctory, for the purpose of 

retaining some discipline over the Federal bureaucracy.

2. I know how strange all this must sound. We have been taught, particularly in the 

past generation of spy scares and Cold War, to think of secrets as secrets—varying in 

their “sensitivity” but uniformly essential to the private conduct of diplomatic and 

military affairs and somehow detrimental to the national interest if prematurely disclosed. By the standards of official Washington—Government and press alike—this 

is an antiquated, quaint and romantic view. For practically everything that our Government does, plans, thinks, hears and contemplates in the realms of foreign policy 

is stamped and treated as secret—and then unraveled by that same Government, by 

9. United States v. N.Y. Times Co., 328 F. Supp. 324 (S.D.N.Y. 1971) (No. 71 Civ. 2662), affidavit available 

at Nat’l Archives & Records Admin., Record Grp. 21, New York, N.Y.
47

The Pentagon Papers in the Federal Courts

the Congress and by the press in one continuing round of professional and social 

contacts and cooperative and competitive exchanges of information....

3. Obviously, there is need for some secrecy in foreign and military affairs. Considerations of security and tactical flexibility require it, though usually for only brief periods of time. The Government seeks with secrets not only to protect against enemies 

but also to serve the friendship of allies. Virtually every mature reporter respects that 

necessity and protects secrets and confidences that plainly serve it.

4. But for the vast majority of “secrets,” there has developed between the Government 

and the press (and Congress) a rather simple rule of thumb: The Government hides 

what it can, pleading necessity as long as it can, and the press pries out what it can, 

pleading a need and right to know. Each side in this “game” regularly “wins” and 

“loses” a round or two. Each fights with the weapons at its command. When the 

Government loses a secret or two, it simply adjusts to a new reality. When the press 

loses a quest or two, it simply reports (or misreports) as best it can. Or so it has been, 

until this moment.

Espionage Act of 1917, as amended10

The U.S. government claimed that newspapers publishing material taken from the Pentagon 

Papers were violating Section 793(e) of the Espionage Act of 1917, which barred communicating information regarding the national defense to those not entitled to receive it. The section 

provided for criminal penalties, but not for a prior restraint on publication; nevertheless, the 

government asserted that an injunction was authorized when, as in this instance, a statute’s 

criminal penalties were inadequate to accomplish the legislation’s purpose. Judge Murray Gurfein of the U.S. District Court for the Southern District of New York, in the opinion excerpted 

below, declined to accept the government’s statutory argument, reasoning that the inclusion of 

the word “publish” in other sections of the Act, but not in Section 793(e), meant that Congress 

did not intend for that section to apply to the conduct of The New York Times. Moreover, the 

judge pointed out that Congress had, in forming the original Espionage Act during World War 

I, voted down a proposal to prohibit the publication of certain national defense information 

during wartime. 

§793. Gathering, transmitting or losing defense information.

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, 

blueprint, plan, map, model, instrument, appliance, or note relating to the national 

10. 18 U.S.C. § 793 (1950).
48

Federal Trials and Great Debates in United States History

defense, or information relating to the national defense 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, delivered, or transmitted the same to any person not 

entitled to receive it, or willfully retains the same and fails to deliver it to the officer 

or employee of the United States entitled to receive it ...

Shall be fined not more than $10,000 or imprisoned not more than ten years, or 

both.

U.S. District Court for the Southern District of New York, decision on 

government’s request for preliminary injunction, June 19, 197111

After holding a closed hearing to examine the government’s claims that it would be irreparably 

harmed by further publication, Gurfein on June 19 declined to impose a preliminary injunction but continued the temporary restraining order to allow the government to appeal his decision. In his decision, Gurfein emphasized that the administration’s call for prior restraint was 

unprecedented in the federal courts and, even in this preliminary decision, cast serious doubt on 

the administration’s interpretation of the Espionage Act of 1917. On June 23, the U.S. Court 

of Appeals for the Second Circuit reversed Judge Gurfein’s decision and remanded the case to the 

district court for further proceedings.

This case is one of first impression. In the researches of both counsel and of the Court 

nobody has been able to find a case remotely resembling this one—where a claim is made 

that national security permits a prior restraint on the publication of a newspaper....

The Government does not contend, nor do the facts indicate, that the publication of 

the documents in question would disclose the types of classified information specifically 

prohibited by the Congress. Aside from the internal evidence of the language of the various 

sections as indicating that newspapers were not intended by Congress to come within the 

purview of Section 793, there is Congressional history to support the conclusion. Section 

793 derives from the original espionage act of 1917.... At that time there was proposed in 

H.R. 291 a provision that “(d)uring any national emergency resulting from a war to which 

the United States is a party ... the President may, by proclamation, prohibit the publishing 

or communicating of ... any information relating to the national defense, which in his 

judgment is of such character that it is or might be useful to the enemy.” This provision for 

prior restraint on publication for security reasons limited to war time or threat of war was

11. United States v. N.Y. Times Co., 328 F. Supp. 324 (S.D.N.Y. 1971).
49

The Pentagon Papers in the Federal Courts

voted down by the Congress....

It would appear, therefore, that Congress recognizing the Constitutional problems of 

the First Amendment with respect to free press, refused to include a form of precensorship 

even in war time....

This Court does not doubt the right of the Government to injunctive relief against 

a newspaper that is about to publish information or documents absolutely vital to current national security. But it does not find that to be the case here.... Without revealing 

the content of the testimony, suffice it to say that no cogent reasons were advanced as to 

why these documents except in the general framework of embarrassment previously mentioned, would vitally affect the security of the Nation. In the light of such a finding the 

inquiry must end....

The security of the Nation is not at the ramparts alone. Security also lies in the value 

of our free institutions. A cantankerous press, an obstinate press, a ubiquitous press must 

be suffered by those in authority in order to preserve the even greater values of freedom of 

expression and the right of the people to know....

For the reasons given the Court will not continue the restraining order which expires 

today and will deny the application of the Government for a preliminary injunction.

U.S. District Court for the District of Columbia, decision on government’s 

request for temporary restraining order, June 18, 197112

When The New York Times series on the Pentagon Papers began, The Washington Post

scrambled to obtain its own copy of the papers, and a few days after the district court in New 

York issued a temporary restraining order against the Times, the Post began to publish its 

own series. The government quickly filed suit in the U.S. District Court for the District of 

Columbia, seeking the same restraining orders it had pursued against the Times. Unlike Judge 

Murray Gurfein in New York, Judge Gerhard Gesell of the U.S. District Court for the District 

of Columbia refused to impose even a temporary restraining order to prevent The Washington 

Post from publishing material on the Pentagon Papers until further proceedings could be held. 

Gesell reasoned that allowing the government to present evidence would not change the outcome, 

because criminal prosecution, rather than prior restraint, was the only remedy available if the 

Post’s publications violated the law. 

The Court has before it no precise information suggesting in what respects, if any, the 

publication of this information will injure the United States and must take cognizance of

12. United States v. Wash. Post Co., No. 71-1235 (D.D.C.), decision available at Nat’l Archives & Records 

Admin., Record Grp. 21, Washington, D.C.
50

Federal Trials and Great Debates in United States History

the fact that there are apparently private parties in possession of this data which they will 

continue to leak to other sources.

What is presented is a raw question of preserving the freedom of the press as it confronts the efforts of the Government to impose a prior restraint on publication of essentially historical data. The information unquestionably will be embarrassing to the United 

States but there is no possible way after the most full and careful hearing that a court would 

be able to determine the implications of publication on the conduct of Government affairs 

or to weigh these implications against the effects of withholding information from the 

public. It is to be strongly regretted that the Post has been unwilling to allow the Court 

to pursue this matter over the next two or three days and voluntarily to withhold publication. Unfortunate as this may be, the Post’s position does not obviate the necessity for 

the Court to determine the law, particularly since the Attorney General has stated he will 

pursue this action regardless of what result is reached in the Times case. The Post stands in 

serious jeopardy of criminal prosecution. This is the only remedy our Constitution or the 

Congress has provided. The Post will be allowed to publish and the request for a temporary 

restraining order is denied.

U.S. Court of Appeals for the District of Columbia Circuit, decision on 

government’s appeal of denial of temporary restraining order, June 19, 

197113

By a 2–1 vote, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed Judge Gesell’s decision to deny the government a temporary restraining order, holding 

that a short-term restraint was justified to permit judicial determination of the potential threat 

to national security posed by further publication. Judge J. Skelly Wright filed a dissent from the 

opinion of Judges Spottswood Robinson and Roger Robb. Wright asserted that the court’s approval of a prior restraint on publication marked “a sad day for America.”

Majority Opinion

We think the law permits an injunction against publication of material vitally affecting the 

national security. In this case, the Government makes precisely that claim—that publication by appellees will irreparably harm the national defense. The District Court nevertheless found that the Government had not advanced even a basis for a temporary restraint to 

determine whether there is any merit to its claim. Under the circumstances, we think the 

District Court erred in that ruling.

We are aware that the Government has not set forth particular elements of prejudice 

13. United States v. Wash. Post Co., 446 F.2d 1322 (D.C. Cir. 1971).
51

The Pentagon Papers in the Federal Courts

to the national defense, and that the document in question covered a period which ended 

three years ago.... We do not understand how it can be determined without a hearing and 

without even a cursory examination of the material that it is nothing but “historical data” 

without present vitality.

While we are advertent to the heavy burden the Government bears to demonstrate 

ample justification for any restraint on publication, we are unable to escape the conclusion 

that the denial of a temporary restraining order may possibly threaten national security. 

Judicial responsibility, in our view, cannot properly be discharged without some inquiry 

into the matter.

Judge J. Skelly Wright, Dissenting Opinion

This is a sad day for America. Today, for the first time in the two hundred years of our 

history, the executive department has succeeded in stopping the presses. It has enlisted the 

judiciary in the suppression of our most precious freedom. As if the long and sordid war 

in Southeast Asia had not already done enough harm to our people, it now is used to cut 

out the heart of our free institutions and system of government. I decline to follow my 

colleagues down this road and I must forcefully state my dissent.... 

Under the First Amendment of our Constitution, prior restraints upon speech and 

press are even more serious than subsequent punishment. There is no question as to the extent of the deterrent effect. A restraining order, imposed by a court, applies directly against 

a particular individual or newspaper and carries very specific and very severe penalties for 

contempt. It is imposed before the speech at issue has even seen the light of day.... 

Since we are dealing with “essentially historical data,” the executive department has 

an even greater burden to suggest what specific sort of harm may result from its publication. Yet it seeks to suppress history solely on the basis of two very vague allegations: (1) 

the data has been classified as “top secret,” because (2) the data is said to adversely affect 

our national security. These allegations are made in completely conclusory fashion in the only 

two affidavits submitted to this court. The affidavits contain no facts whatever to support 

the conclusions or to specify the anticipated harms. Of course, the Government may not 

know precisely which documents the Post has. But it has identified the 47-volume report 

from which the documents are taken. The Government could suggest and support at least 

one specific harm that would result from publication of anything in the 47 volumes. It has 

not even done that.

With the sweep of a rubber stamp labeled “top secret,” the executive department 

seeks to abridge the freedom of the press. It has offered no more. We are asked to turn our 

backs on the First Amendment simply because certain officials have labeled material as 

unfit for the American people and the people of the world. Surely, we must demand more. 
52

Federal Trials and Great Debates in United States History

To allow a government to suppress free speech simply through a system of bureaucratic 

classification would sell our heritage far, far too cheaply....

Whatever temporary damage may come to the image of this country at home and 

abroad from the historical revelations in these Pentagon Papers is miniscule compared to 

the lack of faith in our government engendered in our people from their suppression. Suppression breeds suspicion and speculation. I suggest the truth is not nearly so devastating 

as the speculation following suppression. We are a mature people. We can stand the truth.

U.S. District Court for the District of Columbia, decision on government’s 

request for preliminary injunction, June 21, 197114

After the court of appeals remanded the case to the district court, Judge Gesell held a hearing 

on the government’s request for a preliminary injunction against The Washington Post. The 

evidence presented at the hearing failed to persuade Gesell that further publication would cause 

irreparable injury to the national security, and he denied the injunction. Two days later, the full 

U.S. Court of Appeals for the District of Columbia voted 7–2 to affirm Gesell’s decision. That 

conflict between the D.C. court’s decision and the decision of the U.S. Court of Appeals for the 

Second Circuit, which had reversed the denial of a preliminary injunction against The New 

York Times, made likely an appeal to the Supreme Court of the United States. 

This court was directed by the Court of Appeals to determine whether publication of 

material from this document would so prejudice the defense interests of the United States 

or result in such irreparable injury to the United States as would justify restraining the 

publication thereof.

The role of quasi-censor thus imposed is not one that any District Judge will welcome to have placed on him by an appellate decision. It has been a doubly difficult role 

because the material to be censored is unavailable for there is absolutely no indication of 

what the Post actually will print and no standards have been enunciated by the Court of 

Appeals to be applied in a situation such as this, which is one of first impression.... 

The Court finds that the documents in question include material in the public domain and other material that was Top Secret when written long ago but not clearly shown 

to be such at the present time. The Court further finds that publication of the documents 

in the large may interfere with the ability of the Department of State in the conduct of 

delicate negotiations now in process or contemplated for the future, whether these negotiations involve Southeast Asia or other areas of the world.... 

On the other hand, it is apparent from detailed affidavits that officials make use of

14. United States v. Wash. Post Co., No. 71-1235 (D.D.C. 1971), decision available at Nat’l Archives & Records Admin., Record Grp. 21, Washington, D.C.
53

The Pentagon Papers in the Federal Courts

 classified data on frequent occasions in dealing with the press and that this situation is not 

unusual except as to the volume of papers involved.

The Court of Appeals apparently felt that the question of irreparable injury should 

be considered; that is, that the Court should weigh the equities of the situation in the traditional manner; and this Court has attempted to do so.... 

Our democracy depends for its future on the informed will of the majority, and it 

is the purpose and effect of the First Amendment to expose to the public the maximum 

amount of information on which sound judgment can be made by the electorate. The 

equities favor disclosure, not suppression. No one can measure the effects of even a momentary delay.... 

There is not here a showing of an immediate grave threat to the national security which 

in close and narrowly-defined circumstances would justify prior restraint on publication.

The Government has failed to meet its burden and without that burden being met, 

the First Amendment remains supreme. Any effort to preserve the status quo under these 

circumstances would be contrary to the public interest. Accordingly, the Government’s 

prayer for a preliminary injunction is denied.

The Supreme Court Case

Government’s brief submitted to Supreme Court, June 26, 197115

In their brief to the Supreme Court, the Nixon administration’s attorneys again argued that The 

New York Times and The Washington Post should be restrained from any further publication 

of the Pentagon Papers because of the serious harm to national security that would otherwise 

result. The government attorneys conceded that such harm would not necessarily follow immediately, but insisted that the “grave and irreparable” nature of the eventual harm justified a bar on 

publication. Because no federal statute explicitly authorized a prior restraint on publication, the 

administration stressed the inherent authority the executive branch derived from the President’s 

responsibility for the conduct of foreign affairs and the President’s role as commander-in-chief 

of the armed forces. 

The President’s power to conduct foreign affairs....

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, 

has available intelligence services whose reports are not and ought not to be published to

15. N.Y. Times Co. v. United States and Wash. Post Co. v. United States, 403 U.S. 713 (1971) (Nos. 1873, 

1885), brief available at Nat’l Archives & Records Admin., Record Grp. 267, Washington, D.C.
54

Federal Trials and Great Debates in United States History

the world. It would be intolerable that courts, without the relevant information, should 

review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even 

if courts could require full disclosure, the very nature of executive decisions as to foreign 

policy is political, not judicial. Such decisions are wholly confided by our Constitution to 

the political departments of the government, Executive and Legislative. They are delicate, 

complex, and involve large elements of prophecy. They are and should be undertaken only 

by those directly responsible to the people whose welfare they advance or imperil. They are 

decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility 

and which has long been held to belong in the domain of political power not subject to 

judicial intrusion or inquiry....

The President’s Authority as Commander-in-Chief.

Under Article 2, §2, cl. 1 of the Constitution, the President, as Commander-in-Chief of 

the armed forces of the United States, has not only the duty of conducting military operations, but also the duty of protecting “the members of the armed forces from injury, and 

from the dangers which attend the rise, prosecution, and progress of war.”... The latter responsibility includes the duty to preserve military secrets whose disclosure might threaten 

the safety of United States troops engaged in combat.... 

The classified material that was submitted to the district court in the Post case and 

that the government intends to submit to the district court on the remand in the Times

case—significant portions of which are discussed in our sealed brief filed in this Court—

demonstrates that publication of the Defense Department studies would pose a serious 

danger to the armed forces. Of course, it cannot be said with absolute certainty that this 

result would follow from publication. But the government need not show that such disastrous consequences are inevitable; it is enough that there be a real likelihood of the 

event.... 

While, of course, the judiciary’s duty to enforce the guarantees of the First Amendment cannot be abdicated, we submit that instances in which disclosure of particular state 

secrets would endanger troops in combat or otherwise imminently imperil the national 

security are among the “special, limited circumstances in which speech is so interlaced with 

burgeoning violence that it is not protected by the broad guarantee of the First Amendment,” even from prior restraint. 
55

The Pentagon Papers in the Federal Courts

Secret portion of government’s brief submitted to Supreme Court, June 26, 

197116

In addition to its main brief outlining the legal arguments in support of its request for an order barring further publication of the Pentagon Papers, the government submitted a sealed

brief in an attempt to demonstrate the harm to national security that further publication

would bring. In its secret filing, the government referred to specific parts of the Pentagon Papers, 

which, if disclosed, would disrupt, among other things, relations with U.S. allies, the ongoing 

military effort in Vietnam, covert CIA operations, and negotiations over American prisoners of 

war.

The purpose of this portion of the Brief for the United States is to refer to a selected few 

of these items and to endeavor to show that the publication of these items could have the 

effect of causing immediate and irreparable harm to the security of the United States.... 

1. There are four volumes in the 47-volume compilation which are designated in their 

entirety. They are: Volume VI-C-1, VI-C-2, VI-C-3, and VI-C-4. These contain a 

comprehensive detailed history of the so-called negotiating track. Negotiations were 

carried on through third parties, both governments and individuals. These included 

the Canadian, Polish, Italian, Rumanian, and Norwegian governments. They also included individuals, some holding public office, and some private citizens, sometimes 

with the knowledge of their governments, and sometimes without their governments 

being informed.

 These negotiations, or negotiations of this sort, are being continued. It is obvious 

that the hope of the termination of the war turns to a large extent on the success of 

negotiations of this sort. One never knows where the break may come and it is of 

crucial importance to keep open every possible line of communication. Reference 

may be made to recent developments with respect to China as an instance of a line 

of communication among many which turned out to be fruitful.

 The materials in these four volumes include derogatory comments about the perfidiousness of specific persons involved, and statements which might be offensive to 

nations or governments. The publication of this material is likely to close up channels of communication which might otherwise have some opportunity of facilitating 

the closing of the Vietnam war.

2. Closely related to this is the fact that there is much material in these volumes which 

might give offense to South Korea, to Thailand, and to South Vietnam, just as serious 

offense has already been given to Australia and Canada. South Korea, South Viet16. Id; see also https://nsarchive2.gwu.edu/NSAEBB/NSAEBB48/griswoldbrief.pdf.
56

Federal Trials and Great Debates in United States History

nam, and Australia have troops in Vietnam, and Thailand allows the use of airfields 

from which 65% of our sorties are launched.

For the past many months, we have been steadily withdrawing troops from Vietnam. 

The rate at which we can continue this withdrawal depends upon the extent to which 

we can continue to rely on the support or other nations, notably South Vietnam, Korea, Thailand, and Australia. If the publication of this material gives offense to these 

countries, and some of them are notably sensitive, the rate at which our own troops 

can be withdrawn will be diminished. This would be an immediate military impact, 

having direct bearing on the security of the United States and its citizens.... 

3. There are specific references to the names and activities of CIA agents still active in 

Southeast Asia. There are references to the activities of the National Security Agency. 

This may not be exactly equivalent to the disclosure of troop movements, but it is 

very close to it.... 

5. Volume IV-C-6(b), page 129, sets forth the United States intelligence community’s 

estimate of the Soviet reaction to the Vietnam War. This was made in 1967, but is 

in large part still applicable. The disclosure of this information will give Soviet intelligence insights into the capacity of our intelligence operations, and may strengthen 

them both by giving them better understanding of us, and by leading them to correct 

matters on their side.... 

11.Finally, reference should be made to prisoners of war. We are currently engaged in 

discussions on the prisoner of war issue, in some cases with governments which are 

not wholly friendly. It is obvious that these conversations are conducted on the understanding that they will be confidential, and they are not very likely to be fruitful 

if that confidence is broken.... 

 There is one of these in particular which it is very likely that we will not be able 

to proceed further with as a result of the publication of the papers which has already 

been made by the New York Times and the Washington Post. The longer prisoners 

are held, the more will die.

The New York Times’s brief submitted to Supreme Court, June 26, 197117

The New York Times focused much of its Supreme Court brief on the potentially severe impact 

of a prior restriction on publication, noting that its effect on speech was substantially more 

powerful than a criminal sanction following publication. If a prior restraint were ever constitutional, argued the Times, it would have to be imposed pursuant to a clear legislative mandate 

17. N.Y. Times Co. v. United States, 403 U.S. 713 (1971) (No. 1873), brief available at Nat’l Archives & 

Records Admin., Record Grp. 267, Washington, D.C.
57

The Pentagon Papers in the Federal Courts

rather than an inherent power of the executive. In this case, the government could point to no 

statutory authority to support its position that the Times should be censored. 

Prior restraints fall on speech with a brutality and a finality all their own. Even if they 

are ultimately lifted, they cause irremediable loss, a loss in the immediacy, the impact of 

speech. They differ from the imposition of criminal liability in significant procedural respects as well, which in turn have their substantive consequences. The violator of a prior 

restraint may be assured of being held in contempt. The violator of a statute punishing 

speech criminally knows he will go before a jury, and may be willing to take his chance, 

counting on a possible acquittal. A prior restraint therefore stops more speech, more effectively. A criminal statue chills. The prior restraint freezes.... 

This country’s experience with censorship of political speech is happily almost 

non-existent. Through wars and other turbulence, we have avoided it. Given the choice of 

risks, we have chosen to risk freedom, as the First Amendment enjoins us to do.

We have not opted for some naïve insistence that all our processes of government 

take place in the open, or that those charged with heavy responsibilities, executive, legislative or judicial, be denied privacy in their decisional processes. But we have preserved 

the values of decisional privacy without resorting to censorship. We have met the needs 

for privacy by safeguarding it at the source, as in the Government’s internal procedures for 

maintaining information security. In some limited measure, we have used the deterrent 

force of the criminal sanction to safeguard privacy and security. But we have not censored.

The Washington Post’s brief submitted to Supreme Court, June 26, 197118

In its brief to the Supreme Court, The Washington Post emphasized that the government 

had failed to prove that it would suffer irreparable harm if the courts did not restrain further 

publication of the Pentagon Papers. A general allegation that disclosure of the secret documents 

would cause the United States embarrassment and potentially hinder its diplomatic efforts was 

insufficient to justify censorship, the Post argued. Furthermore, the brief pointed out that the 

government’s decision to label the Pentagon Papers “top secret” did not relieve the Court from 

conducting its own assessment of whether publication of the documents could be restrained consistent with the First Amendment. (Note: the Post’s case, United States v. Washington Post 

Company et al., was consolidated with The New York Times’s case before the Supreme Court.)

The overall classification of the Vietnam History was necessarily fixed by the highest classi18. United States v. Wash. Post Co., 403 U.S. 713 (1971) (No. 1885), brief available at Nat’l Archives & 

Records Admin., Record Grp. 267, Washington, D.C.
58

Federal Trials and Great Debates in United States History

fication of any source material on which it is based. By reason of this so-called “derivative 

classification” practice, such items as the public speeches of Presidents and other governmental officials are classified “Top Secret.” ... 

No attempt was made to segregate classified and nonclassified documents of the 

Vietnam History for the purpose of avoiding overclassification, nor had the Vietnam History been reviewed for purposes of downgrading and declassification.... 

I. The Findings Of The District Court Must Be Sustained Unless They Are 

Shown To Be Clearly Erroneous.... 

It is hornbook law that, in any case—even a case in which no constitutional principles are at stake—a plaintiff may not obtain the extraordinary remedy of a preliminary injunction unless it can establish to the satisfaction of the Court, not only 

that it will probably succeed at the final hearing, but also that, absent preliminary 

injunctive relief, it will suffer grave and irreparable injury....

 The Government has failed to satisfy either of those requirements in the Courts 

below. Thus, even if this were a non-constitutional case, the Government could not 

prevail....

 This, however, is not an ordinary case. It constitutes a precedent-shattering attempt by the Government to impose a prior restraint which would prohibit the Post 

from publishing material of the highest political importance concerning the most 

critical issue facing this nation today. Where such First Amendment rights are involved, the Government bears a burden even greater than is normally the case, for the 

balance is always weighted in favor of free expression, especially where the proposed 

infringement involves a prior restraint.... 

II.The Government Has Failed To Prove An Immediate And Grave Threat To

National Security....

The District Court did find that publication of the documents “may” interfere with 

the ability of the State Department to conduct delicate negotiations but, significantly, such interference would result: “... not so much because of anything in the 

documents, themselves, but rather results from the fact that it will appear to foreign 

government that this Government is unable to prevent publication of actual Government communications when a leak such as the present one occurs. Many of these 

governments have different systems than our own and can do this; and they censor.”

 Embarrassment to the United States because foreign governments do not fully 

comprehend the operation of the principles governing our free institutions is obviously not the kind of injury to the national defense ... which this Court or any 

other Court should recognize as a reason justifying the abrogation of those hard-won 
59

The Pentagon Papers in the Federal Courts

liberties of speech and press which are the envy of all whose freedoms are suppressed.

III. Respondents Are Not Bound By The Government’s Classification System.

It now appears that the Government, having failed to establish to the satisfaction of 

either of the Courts below that publication of material from the Vietnam History 

will in fact gravely and irreparably endanger the national defense, intends to rely 

upon the argument that it may, by its own ipse dixit, label or classify any of its documents “Top Secret” or “Secret”; that its decisions in this regard are not subject to 

challenge, judicial or otherwise, even where those documents come into the hands 

of third parties; and that the Government may thereby preclude publication of the 

contents of those documents. Thus, the Government conveniently seeks to relieve 

itself of the burden which the Courts below—and the Constitution—impose upon 

it.... 

 We are here concerned with a constitutional case. The question is whether prohibition of publication of historical documents constitutes a violation of the First 

Amendment. The Government’s use of labels—even “Top Secret-Sensitive”—does 

not relieve the Courts of their duty independently to determine, on the basis of the 

record made below, whether the injunction the Government here seeks would, if 

issued, impinge upon the Respondents’ First Amendment rights.

Amicus brief of 27 members of Congress submitted to Supreme Court, 

June 25, 197119

Twenty-seven members of the U.S. House of Representatives, all but two of them Democrats, 

filed a brief urging the Supreme Court not to restrain further publication of the Pentagon Papers. The brief argued that the executive branch had become too powerful and that information 

such as that contained in the Pentagon Papers was subject to a “legislative right to know,” 

essential for members of Congress to carry out their constitutional function as the elected representatives of the people.

The Members of Congress, on whose behalf this brief is filed, have a vital interest in the 

outcome of these cases distinct from that of the plaintiff, the defendants, or the general 

public. As members of the national legislature they must have information of the kind involved in these suits in order to carry out their law-making and other functions in the legislative branch of the government. They seek to vindicate here a legislative right to know.

In addition as elected representatives of the people in their districts, Members of 

19. N.Y. Times Co. v. United States and Wash. Post Co. v. United States, 403 U.S. 713 (1971) (Nos. 1873, 

1885), brief available at Nat’l Archives & Records Admin., Record Grp. 267, Washington, D.C.
60

Federal Trials and Great Debates in United States History

Congress have a particular and profound interest in having their constituents obtain all 

the information necessary to perform their functions as voters and citizens. More than any 

other officials of government, Members of Congress have relations with the public that 

gives them a crucial concern with the public’s right to know.... 

The legislative right to know is of particular importance at this period of development in our national affairs. The constant growth of the executive power has been a major 

characteristic of our age. More and more the people of our country have been concerned 

that the expansion of executive power has upset the original balance contemplated by the 

framers of our Constitution, that monopoly of power in the Executive has resulted in the 

government losing touch with the needs and desires of its own citizens, and that enhanced 

power in our elected representatives is imperative to restore a healthy division of authority 

in government.

There are a number of reasons for this unparalleled and dangerous growth of Executive power in the United States. There can be no doubt, however, that one of the principal 

reasons is the far greater access of the Executive to information, and its unwillingness to 

share that knowledge with Congress and the public. In today’s world, control of the information process is the key to power.... 

There is no need to stress here that the documents involved in these proceedings 

could not be more relevant to the issues now pending in Congress. Termination of the war 

in Vietnam, extension of Selective Service, appropriations for the conduct of the war, and 

numerous other questions are before the House and the Senate at this very moment. In 

addition, broader problems going to the respective powers of Congress and the President 

in connection with the making of war and the conduct of foreign relations are pressing 

for attention. It thwarts common sense that the information here in question should be 

withheld from Members of Congress.

In sum, to close off access to the kind of material the Government is now attempting 

to suppress would cripple the legislature in the performance of its constitutional functions. 

It would go far to relegate the legislative branch to second rate status in relation to the 

Executive, to jeopardize the balance of power between the branches of government and to 

alter the whole constitutional structure.

Amicus brief of National Emergency Civil Liberties Committee submitted 

to Supreme Court, June 25, 197120

The National Emergency Civil Liberties Committee, acting on behalf of a group of scholars and 

political commentators that included Noam Chomsky, Hans Morgenthau, and Howard Zinn, 

20. Id.
61

The Pentagon Papers in the Federal Courts

filed a brief in support of the newspapers’ right to publish the Pentagon Papers. The brief stressed 

the importance of the papers to the ongoing public debate over the Vietnam War.

Delay in the publication of the materials in question will irreparably injure the public 

interest even though it may not result in similar or equal injury to the New York Times or 

the Washington Post.

Both newspapers are commercial enterprises. Their financial wellbeing is not likely to 

be affected by a delay in the publication of these documents. Whether they are published 

Sunday or a month from Sunday or six months hence, the circulation of these papers is not 

likely to be seriously affected and it may therefore well be concluded that no irreparable 

injury, in a legal sense, will result from such delay. But the public interest is quite another 

matter. We are engaged now in a great national debate concerning the war in Vietnam 

and the origins of that war play an important role in the debate. Whether the war was 

in fact legal or not legal, whether or not the President usurped his power, whether or not 

Congress was misled as to the facts giving rise to hostilities, whether or not the public was 

given misleading information—all of these issues and many others are central to this great 

national debate.

And the papers which are the subject of this action are central to these issues.

On June 16, the Senate of the United States voted on the McGovern-Hatfield 

Amendment calling for a December 31 deadline [to cease] hostilities in Vietnam. That 

amendment was defeated by a margin of only a few votes. The House equivalent of the 

McGovern-Hatfield Amendment was voted on a day or two later. It may be that revelation 

of further information such as that which the Times and Post have already published could 

have influenced the votes of five or six Senators and affected the outcome in the Senate, 

and that a different result in the House might have followed. Irreparable injury may therefore already have occurred to the public interest as a result of the temporary restraining 

orders and stays issued by the Courts below.

But the debate is not over, and will undoubtedly continue or even increase in intensity as long as the war goes on. Congress still has before it appropriation bills, a bill for the 

extension of the draft, and numerous other important items of legislation which have a 

close relationship to the conduct of hostilities in Vietnam.

The government has argued that publication of the materials in question have threatened the national security. We believe, to the contrary, that the very bringing of these 

actions by the government, with the grave threat to free speech which they pose, and the 

delays in publication ordered by the Courts below create a far greater threat to the continuation and vigor of American democracy.

Every day that passes during which vital information is kept from the Congress and 

the public, serious irreparable injury is suffered by the public interest.
62

Federal Trials and Great Debates in United States History

Supreme Court of the United States, concurring and dissenting opinions 

in New York Times Co. v. United States, June 30, 197121

On June 30, 1971, the Supreme Court of the United States issued a brief per curiam, or 

unsigned, order reversing the decision of the Second Circuit and affirming that of the D.C. 

Circuit. The Court held that the government had not met its heavy burden of showing that a 

prior restraint on publication could be justified in keeping with the First Amendment. All nine 

justices—Hugo Black, William Brennan, William Douglas, Thurgood Marshall, Potter Stewart, and Byron White concurring and Harry Blackmun, Warren Burger, and John Marshall 

Harlan dissenting—wrote separate opinions to explain their votes.

Justice Hugo Black, concurring opinion

I believe that every moment’s continuance of the injunctions against these newspapers 

amounts to a flagrant, indefensible, and continuing violation of the First Amendment....

In the First Amendment the Founding Fathers gave the free press the protection it 

must have to fulfill its essential role in our democracy. The press was to serve the governed, 

not the governors. The Government’s power to censor the press was abolished so that the 

press would remain forever free to censure the government. The press was protected so 

that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. 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. In my view, far from deserving condemnation for their courageous 

reporting, The New York Times, The Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the 

workings of government that led to the Vietnam war, the newspapers nobly did precisely 

that which the Founders hoped and trusted they would do.

Justice William J. Brennan, concurring opinion

The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government’s claim 

throughout these cases has been that publication of the material sought to be enjoined 

“could,” or “might,” or “may” prejudice the national interest in various ways. But the First 

Amendment tolerates absolutely no prior judicial restraints of the press predicated upon 

surmise or conjecture that untoward consequences may result. Our cases, it is true, have 

indicated that there is a single, extremely narrow class of cases in which the First Amendment’s ban on prior judicial restraint may be overridden. Our cases have thus far indicated 

21. N.Y. Times Co. v. United States and Wash. Post Co. v. United States, 403 U.S. 713 (1971)
63

The Pentagon Papers in the Federal Courts

that such cases may arise only when the Nation “is at war,” during which times “[n]o one 

would question but that a government might prevent actual obstruction to its recruiting 

service or the publication of the sailing dates of transports or the number and location of 

troops.” [Case citations omitted.] Even if the present world situation were assumed to be 

tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear 

holocaust, in neither of these actions has the Government presented or even alleged that 

publication of items from or based upon the material at issue would cause the happening 

of an event of that nature. “[T]he chief purpose of [the First Amendment’s] guaranty [is] 

to prevent previous restraints upon publication.” [Case citation omitted.] Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately 

cause the occurrence of an event kindred to imperiling the safety of a transport already at 

sea can support even the issuance of an interim restraining order. In no event may mere 

conclusions be sufficient.... 

Justice Potter Stewart, concurring opinion

In the absence of the governmental checks and balances present in other areas of our 

national life, the only effective restraint upon executive policy and power in the areas of 

national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic 

government. For this reason, it is perhaps here that a press that is alert, aware, and free 

most vitally serves the basic purpose of the First Amendment. For without an informed 

and free press there cannot be an enlightened people.

Yet it is elementary that the successful conduct of international diplomacy and the 

maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they 

can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other 

freely, frankly, and in confidence. In the area of basic national defense the frequent need 

for absolute secrecy is, of course, self-evident.

I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. If the Constitution gives the Executive a large degree 

of unshared power in the conduct of foreign affairs and the maintenance of our national 

defense, then under the Constitution the Executive must have the largely unshared duty 

to determine and preserve the degree of internal security necessary to exercise that power 

successfully. It is an awesome responsibility, requiring judgment and wisdom of a high or-
64

Federal Trials and Great Debates in United States History

der. I should suppose that moral, political, and practical considerations would dictate that 

a very first principle of that wisdom would be an insistence upon avoiding secrecy for its 

own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those 

intent on self-protection or self-promotion. I should suppose, in short, that the hallmark 

of a truly effective internal security system would be the maximum possible disclosure, 

recognizing that secrecy can best be preserved only when credibility is truly maintained.

Chief Justice Warren Burger, dissenting opinion

In these cases, the imperative of a free and unfettered press comes into collision with 

another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those 

who view the First Amendment as an absolute in all circumstances—a view I respect, but 

reject—can find such cases as these to be simple or easy. 

These cases are not simple for another and more immediate reason. We do not know 

the facts of the cases. No District Judge knew all the facts. No Court of Appeals judge 

knew all the facts. No member of this Court knows all the facts.

Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are 

really in a position to act?

I suggest we are in this posture because these cases have been conducted in unseemly 

haste.... 

It is not disputed that the Times has had unauthorized possession of the documents 

for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this 

time, the Times, presumably in its capacity as trustee of the public’s “right to know,” has 

held up publication for purposes it considered proper and thus public knowledge was 

delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the 

writing of good news stories takes time. But why should the United States Government, 

from whom this information was illegally acquired by someone, along with all the counsel, 

trial judges, and appellate judges be placed under needless pressure? After these months of 

deferral, the alleged “right to know” has somehow and suddenly become a right that must 

be vindicated instanter.... 

The consequence of all this melancholy series of events is that we literally do not 

know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude, without an adequate record, and surely without time for 
65

The Pentagon Papers in the Federal Courts

adequate treatment either in the prior proceedings or in this Court. 

Justice Harry A. Blackmun, memorandum regarding opinion of Justice 

Byron White, June 30, 197122

Justice Harry Blackmun circulated a memorandum to his fellow justices rebutting Justice Byron 

White’s assertion that the circumstances under which a prior restraint on publication could be 

invoked were severely limited because Congress had not chosen to authorize such a remedy explicitly. Protection of the executive branch’s authority over foreign policy did not depend on congressional authorization, asserted Blackmun. Congress, moreover, could not authorize a remedy 

broader than that already allowed by the First Amendment, under which, Blackmun believed, 

prior restraints in national security cases were permissible whether or not authorized by statute. 

I do not see how congressional legislation could provide any authority for prior restraint in 

a national security (or other) case which is not now permitted by the First Amendment....

Justice White looks for congressional “guidance and direction” and laments that it 

would be impractical for the courts to adjudicate requests for injunctions in national security cases because the material upon which a decision is rendered could not be described 

in the opinion.

I do not understand the role of Congress envisioned by Justice White. I am not 

persuaded that judicial protection of the executive authority in matters of foreign affairs 

depends upon authorization by Congress—or is limited to the adjudication of criminal 

prosecutions for violation of espionage statutes.... 

The judiciary—as is the case with the self-appointed newspaper editors—cannot be 

the supervisor of the Executive in the area of foreign affairs. The experience, expertise and 

human resources for such an endeavor does not lie in the judicial community.

The “national press,” in my view, has less of a mandate for the position of supervisor. 

In Footnote 1, Justice White seems to view a newspaper as something other than a “private 

party”—and as an entity with greater authorization under the First Amendment than is 

enjoyed by “private parties.” Newspapers do perform a function and “freedom of the press” 

is essential, but that freedom is limited, certainly, by a responsibility for national security. 

I cannot believe that the First Amendment licenses the jeopardizing of national security—

for the small price of 10 years and $10,000.... 

I fail to grasp the sanctity of the doctrine of prior restraint in national security cases.... In my view, there is no justification for this rather empty adherence to prior restraint 

where the cost to the country could be the disclosure of critical national security information by any self-appointed guardian of the people who is willing to endure the criminal 

22. Harry A. Blackmun papers (on file with the Library of Congress).
66

Federal Trials and Great Debates in United States History

punishment. Resolution of the problem requires a balancing of interests—and I would 

favor tipping the balance in the direction of the elected Executive and the checks provided to the Congress and the voters by the Constitution, rather than to an absolute First 

Amendment rule and newspaper editors whom I cannot vote out of office and whose primary interest, witness the SG’s example presented at oral argument, is to sell newspapers.

Judge Harold Leventhal, letter to Judge Walter Bastian, July 1, 197123

Judge Harold Leventhal of the U.S. Court of Appeals for the District of Columbia Circuit, who 

voted against granting the government a preliminary injunction to prevent The Washington 

Post from publishing the Pentagon Papers, wrote to Judge Walter Bastian, a senior judge on 

the same court, the day after the Supreme Court’s ruling. Leventhal described the documents in 

question as “lukewarm tea,” and expressed bafflement that the government was exerting so much 

effort to prevent their publication.

As you have read in the newspapers, we have had an exciting time these past weeks in what 

we call the Washington Post case, but is generally dubbed the New York Times case. Since 

I was one of the 7-2 majority that was affirmed by the 6-3 vote of the Supreme Court I 

naturally think the High Court did the right thing. There were a number of documents 

that I would prefer not be published, but I could not conceivably refer to them as posing 

an immediate and irreparable injury to the Government. And while ordinarily I would 

agree that a case should be tried carefully, when it comes to stopping the presses on a responsible newspaper I think the “heavy burden” on the Government requires an almost 

climactic showing.... 

I can assure you that the secret, no, top secret, documents given to the judges under 

seal, seemed lukewarm tea. One document was not even given to us under seal; it was 

passed up by the Government with the request that we read it in the courtroom and hand 

it right back. For once, I departed from my compulsive notetaking,—and for more than 

one reason: I could barely comprehend why the Government was so exercised, especially 

since the alleged secret was one which could not help being known to the other side.

23. Harold Leventhal papers (on file with the Library of Congress).
67

The Pentagon Papers in the Federal Courts

Congressional Response to the Publication of the Pentagon Papers

and the Related Court Decisions

U.S. Representative James Abourezk, remarks in House of Representatives, 

June 16, 197124

A few days after The New York Times began its series on the Pentagon Papers, Democratic 

Representative James Abourezk of South Dakota spoke in support of the Nedzi-Whalen Amendment—an unsuccessful measure, sponsored by Democrat Lucien Nedzi of Michigan and Republican Charles Whalen of Ohio—that would have cut off further funding for weapons in 

order to end U.S. involvement in the Vietnam War. Relying on the Times’s reports, Abourezk 

claimed that the Johnson and Nixon administrations had, since 1964, carried on a campaign 

of deception in order to maintain public support for the war. 

Mr. Speaker, in 1964 the American people were told that a vote for Lyndon Johnson was 

a vote for peace. We voted for him and we got war. In 1965, 1966, and 1967 we were told 

that just 1 more year of patience would bring victory and an end to the war. We waited 

patiently and the war went on. In 1968 we were told that a vote for President Nixon was 

a vote for his plan to end the war. The Nation voted for Nixon and so far we have gotten 

2 1⁄2 more years of war.... 

After all of the half-truths, overoptimistic hopes, and outright lies we have been fed 

about Vietnam, it really should not come as a great surprise that this war was planned and 

plotted by a Johnson administration which at the very same time was saying it was against 

a Vietnam war. What the revelations by the New York Times really show is that from the 

very beginning top Government officials knew that the people of the United States would 

not support a massive land war in Asia. They knew that the only way the war could be 

carried on was through a policy of official deception. This is the policy that was adopted in 

1964, and which has continued to this day.

It is this policy of deception which has produced such double think terms as protective reaction, and free fire zone. It is this policy which has fostered the grizzly body count 

that deceives the people of America and demeans our Nation around the world. And it is 

this policy that has led directly to the most crippling distrust of government in the history 

of our Nation.

24. 117 Cong. Rec. 20284 (Jun. 16, 1971).
68

Federal Trials and Great Debates in United States History

U.S. Senator George McGovern, remarks in Senate, June 17, 197125

In the wake of The New York Times’s initial coverage of the Pentagon Papers, Democratic 

Senator George McGovern of South Dakota accused government officials, including former 

Secretary of Defense Robert McNamara, of lying to the Senate Foreign Relations Committee 

during its 1968 hearings on the Tonkin Gulf incident. While McNamara had denied that U.S. 

personnel had participated in military operations against North Vietnam in the months leading 

up to the Tonkin clash, the Pentagon Papers revealed that American forces had carried out covert 

attacks during this period. In 1972, McGovern won the Democratic nomination for President 

and ran as an antiwar candidate against incumbent Richard Nixon. Despite the growing unpopularity of the Vietnam War, Nixon defeated McGovern in a landslide.

Mr. President, the documents published by the New York Times relating to American 

military involvement in Indochina have clearly shown that the administration did not 

adequately inform the American people and the Congress about the policy it was pursuing 

there.

There is documentary evidence now available which indicates that as late as 1968, 

when the Foreign Relations Committee held hearings on the Gulf of Tonkin incident, 

high administration officials continued to deny the extent of American military involvement and planning at the time of the incident.... 

From the evidence now available, we can already identify some of the most flagrant 

efforts to deceive the American people. On February 20, 1968, Secretary of Defense McNamara told the committee that South Vietnamese operations against the north:

Were under the command of the South Vietnamese and were carried out by 

the South Vietnamese. There were no U.S. personnel participating in it, to the 

best of my knowledge.

But the documents printed and summarized in the New York Times show that from 

February 1, 1964, “an elaborate program of covert military operations against the state 

of North Vietnam” began—Pentagon quote. United States personnel were involved. The 

operations were directed, not by the South Vietnamese, but through a section of the Joint 

Chiefs of Staff called the Office of the Special Assistant for Counterinsurgency and Special 

Activities.

At other points in the hearings, Secretary McNamara denied knowledge of an advance draft of the Gulf of Tonkin resolution, prior to the actual incident, and of plans 

in late 1963 and early 1964 for extending the war into the north. In the first case, Mr. 

McNamara either was not frank in his answer or he was implicitly admitting that his own 

25. 117 Cong. Rec. 20634 (Jun. 17, 1971).
69

The Pentagon Papers in the Federal Courts

subordinates had escaped his control in preparing such a draft. In the second case, he was 

simply not honest. The Times quotes a memo from Mr. McNamara to the President dated 

December 21, 1963 concerning CIA and U.S. military plans for operations in the north. 

He wrote:

They (the plans) present a wide variety of sabotage and psychological operations against North Vietnam from which I believe we should aim to select 

those that provide maximum pressure with minimum risk.

A careful examination of the Foreign Relations Committee hearings and related documents show, when compared with the documents in the New York Times, a consistent 

pattern of deception by the Defense Department about the state of American military 

preparations and planning prior to the Gulf of Tonkin incident.

There can be no excuse for failing to tell the truth years after the fact. The documents 

show that we became involved in Vietnam, not to protect that country, but for many extraneous reasons and mainly to prevent our own humiliation. Obviously that is why the 

Defense Department officials did not want to admit even later what they had done.

But I cannot understand why the present administration has joined in the effort to 

suppress the truth. Their actions implicate them in the conspiracy of silence.

U.S. Representative William S. Moorhead, remarks in House of Representatives, June 21, 197126

U.S. Representative William Moorhead, Democrat from Pennsylvania and chair of the Foreign Operations and Government Information Subcommittee of the House Committee on Government Operations, announced that his subcommittee would hold hearings to examine government policies regarding the handling of sensitive information. Moorhead believed that the 

Pentagon Papers case demonstrated the executive branch’s overly restrictive approach to sharing 

information with Congress and the public. Moorhead’s reference to the administration’s “violent 

attacks” on the news media was almost certainly a response to Vice President Spiro Agnew’s sharp 

criticism of media coverage of the Vietnam War. 

Mr. Speaker, the constitutional right of the legislative branch to receive documents, reports, and other types of classified as well as unclassified information from the executive, 

must be constantly exercised if we are to fulfill our duties as elected representatives of the 

American people. Many Members have become increasingly alarmed by the manifestations of erosion of public confidence in Government at all levels, triggered in part by

26. 117 Cong. Rec. 21108 (Jun. 18, 1971).
70

Federal Trials and Great Debates in United States History

violent attacks on the news and broadcasting media by top administration officials. These 

attacks have been accompanied by both subtle and heavy-handed restrictions by the executive on the free flow of information to the Congress and to the public through the mass 

media. Examples include the current New York Times and Washington Post cases and the 

refusal to provide congressional committees with vitally needed documents on Vietnam.

All Members are fully conscious of the important need for safeguarding vital defense 

security. Congress has enacted many laws to deal with this defense requirement and such 

laws have been fully implemented by Executive orders and regulations to govern the handling, dissemination, use, and periodic declassification of such information.

Fine constitutional as well as operational lines have been drawn between the national 

security requirements, on the one hand, and the need for an informed electorate, on the 

other, in the exercise of a free press under the first amendment. Our hearings will explore 

every facet of this complex constitutional issue, for background purposes as well as the 

administrative and legislative details of Government information procedures.

Statement of Hon. Arthur J. Goldberg, Former Supreme Court Justice, at 

congressional hearing, June 23, 197127

Ten days after The New York Times began publishing the Pentagon Papers, William Moorhead’s subcommittee began hearings to determine, in Moorhead’s words, “whether or not the 

right of the people and the peoples’ representatives in Congress to adequate information is being 

thwarted and, if so, to recommend legislation for procedural mechanisms to reestablish a proper 

balance between these shifting constitutional rights.”

The first statement to the subcommittee was made by Arthur Goldberg, who served as a 

justice on the U.S. Supreme Court from 1962 to 1965, when he resigned to become the U.S. 

ambassador to the United Nations. Goldberg urged Congress to take a more active role in balancing the executive branch’s need for secrecy and the public’s right to know, reasoning that the 

latter could not be adequately protected if elected representatives were not full partners in the 

evaluation and safeguarding of vital information.

In this case, the drama is virtually unprecedented: the most powerful government in the 

world has taken powerful newspapers into court. And as the world watches with fascination and incredulity, America is forced to confront constitutional and political questions 

of the utmost gravity in an atmosphere of crisis.

Some of these questions will be resolved by the Supreme Court of the United States.

27. House of Representatives, 92nd Congress, 1st Session, U.S. Government Information Policies and Practices—The Pentagon Papers: Hearings before a Subcommittee of the Committee on Government Operations 9–14 

(1971).
71

The Pentagon Papers in the Federal Courts

 It would not be appropriate to discuss the precise legal issues awaiting judicial resolution 

and I do not propose to do so. But the broader questions of reconciling the needs of the 

government and the rights of the citizen to information on the operations of government 

are appropriate for discussion and resolution, consistent with our Constitution, by this 

committee, by like committees, and by Congress at large. It is the broader philosophical 

questions which underpin our constitutional framework, rather than the narrower legal 

questions, that I should like to discuss this morning.

We are witnessing what some regard as a classic conflict between freedom and responsibility; between order and liberty; between the right of the public and their representatives to know—in the name and spirit of democracy—and the Executive’s need to 

withhold—in the name of security. But, I believe, as I have said before—in a majority 

opinion of the Supreme Court—that “freedom and viable government are ... indivisible 

concepts.” [Case citation omitted.] They can be reconciled—they must be reconciled—if 

our form of government is to survive as it has done for almost 200 years.... 

Given this premise, is there an orderly framework in which the rights and needs of 

the public, the press, Congress and the executive can be rationalized and reconciled? I 

think there is, on the basis of the following guidelines:

First, in mandating government by the consent of the governed, our constitutional 

system requires that the people be adequately and honestly informed about the great issues that affect their lives and welfare. If this means the government must, by and large, 

be conducted in a goldfish bowl, so be it, for in no other way can it retain the consent of 

the governed. The first amendment was conceived as a basic safeguard of the public’s right 

to know, as well as the press’ right to publish. Without the first amendment—indeed the 

whole Bill of Rights—we all know our Constitution would not have been adopted. A firm 

commitment was made at the time that there would be a Bill of Rights. The language of 

the first amendment in this connection needs recalling. 

“Congress shall make no law ... abridging the freedom of speech or of the press ....” 

I would hope, as Justice Cardozo has felicitously said, that this “preferred right” on which 

all other rights rest will be preserved against further erosion. This provision also applies—

while directed at the Congress—now by decisions of the Supreme Court, to the States and 

also to actions of the Executive.

Second, there is no possible justification that I can conceive for denying to Congress 

the information necessary to the performance of its duties. If the people have a right to 

know, their representatives have a need to know. Nothing can contribute more to the 

weakening of Congress and undue concentration of power in the executive than the latter’s 

recalcitrance in sharing information with Congress. With adequate information, Congress 

under our constitutional framework can be the full partner which was envisioned in our 
72

Federal Trials and Great Debates in United States History

separation of powers, in the evolution of policy and the resolution of our foreign and 

domestic problems—this is what the Founding Fathers perceived. Without it, Congress 

cannot appropriately perform functions entrusted to it under our Constitution.

Third, as the history of civilization, ancient and modern, teaches, any government, 

including our own, has more to fear from a captive press than from a zealous press, more 

to fear from the journalistic apologist for an administration—any administration—than 

the journalistic antagonist of an administration. By commanding freedom for the press, 

our Constitution seeks to inspire responsibility by the press. As an essential safeguard, the 

framers of our Constitution vested in the courts the duty of assuring the constitutional 

freedom of the press as well as the orderly exercise of the Government.... 

Mr. Chairman, I regret exceedingly the confrontation which has come between the 

press and our Government. I am one who believes that we have had too many confrontations lately. In resolving this terrible dilemma, there is surely no easy solution. But there 

are ways in which all of us may proceed to preserve the vital balance between press, the 

Congress, the public, and the executive branch of the Government.

First, we presumably will receive guidance from the Supreme Court on the fundamental constitutional questions at issue.

Second, we should distill the best from among the various thoughtful proposals being advanced by Members of Congress, on the question of reforming our classification 

procedures. It is my own feeling that here is an area in which Congress should act to define 

more precisely what documents are properly to be classified, and the duration of any classification. The present system whereby the executive branch itself determines the rules for 

disclosure of its own documents has proved inadequate for keeping Congress and citizen 

informed. It would be appropriate, I feel, for Congress to draw upon the various proposals 

of its Members and others and lay down more specific guidelines.

Third, I believe that our statutes dealing with disclosure of information merit careful 

revision so that they may better conform to constitutional requirements as defined by the 

Supreme Court of precision and clarity. In such revision, we must bear in mind again what 

the Supreme Court has said:

The first and fourteenth amendment rights of free speech and free association are fundamental and highly prized, and “need breathing space to survive.” 

“Freedoms such as these are protected not only against heavy-handed frontal 

attack, but also from being stifled by more subtle government interference.” 

[Case citations omitted.]

Fourth, I can see no conceivable reason why the chairman of the appropriate committees of Congress cannot be furnished copies of executive reports and memorandums 

essential to the performance of congressional responsibilities under appropriate security 
73

The Pentagon Papers in the Federal Courts

arrangements. I am sure that the average constituent, the average member of the public, 

must be completely puzzled why access to certain such documents is denied to responsible 

Members of Congress when newspapers seem to have such documents at hand.

Fifth, I think the present impasse makes it imperative that a select committee of 

Congress conduct a special investigation into the causes and conduct of the war in Vietnam. Regardless of how the various lawsuits turn out, such an investigation is necessary 

to preserve public trust in the candor and competency of our public officials and, indeed, 

of our Government itself. This investigation should occur at an appropriate date fixed 

in the judgment of Congress and should be accompanied by public disclosure of those 

documents whose classification is no longer merited. I myself haven’t the slightest doubt 

that such a select committee will carefully screen the documents to preserve necessary 

confidentiality. That is done in proceedings in Congress all of the time, where the Foreign 

Affairs Committee, the Armed Services Committee, other committees of Congress holding hearings and at various stages release or not release some material to the press. But I 

would put that power in the select committee. I also have no doubt that the public today, 

along with Congress, is entitled to know, subject only to genuine national and diplomatic 

security considerations, all that occurred leading to the momentous decisions of this tragic 

war. In fact, I see no escaping from this at the present time in light of what has occurred 

in recent days.

Statement of Richard P. Kleeman, Washington Correspondent for the 

Minneapolis Tribune, and Chairman, Freedom of Information Committee, 

Sigma Delta Chi, at congressional hearing, June 25, 197128

Reporter Richard Kleeman, who chaired the Freedom of Information Committee of Sigma 

Delta Chi, a professional journalists’ organization, argued that prior restraints on publication 

constituted unwarranted government censorship. Kleeman stressed that while members of the 

press could not perform their function effectively without disclosing sensitive information, the 

vast majority of journalists handled such material carefully and responsibly and were thus qualified to exercise independent judgment, free from government supervision. 

I would like to comment on a recent claim that freedom of the press and freedom of information have become partisan issues: as the current chairman of a committee that—under 

many chairmen before me—has been at least as critical of Democratic as of Republican 

administrations on these issues, I find that view, now or at any time in the past, unwarranted....

28. Id. at 234–38.
74

Federal Trials and Great Debates in United States History

[O]n the question of the Government’s right to restrain publication in advance: our 

society would agree with the Hughes decision in Near v. Minnesota in 1931 that such prior 

restraint “is of the essence of censorship,” and we reject the idea of Government censorship in all but the most limited of wartime, battlefield situations.

On the other hand, I do not believe there are many—if any—reporters, editors or 

broadcasters who are not sensitive to the occasional need for restraint—preferably by mutual agreement—imposed by the exigencies of national security. This concept also was 

dealt with in the 1931 Hughes opinion when it said that:

No one would question but that a government might prevent actual obstruction to its recruitment service or the publication of the sailing dates of transports or the number and location of troops.

I think you would have to take those as merely examples of a class of information, 

rather than limiting it to those specifics. What I think the responsible reporter or editor 

would say is that the judgment of the effect of what he might write or publish in a security-sensitive area is but one of many judgments they are constantly called upon to make in 

gathering, editing, and publishing the news. What they do not want is a government—or 

a court—standing beside them saying, “Print this—don’t print that.”

The present situation is not by any means the first time—nor will it be the last—that 

highly classified documents have come into the possession of aggressive, enterprising newsmen. Perhaps half—maybe more—of what a good reporter writes consists of material that 

someone, in or out of government, would prefer not to see reported. Sometimes reporters 

having security-sensitive information elect to publish it—I would say most often they 

do—on some few occasions, they elect to withhold it, at least temporarily. But always the 

judgment should be independently made—and made in full awareness of the responsibility imposed by its exercise.

A high classification on a document does not cause the experienced newsman to say, 

“I must not print that.” If, through whatever circumstances, such a document comes into 

his hands, its classification would alert him to the fact that he has potentially significant, 

and possibly harmful, information in his possession; that it should be analyzed with care, 

perhaps summarized or paraphrased rather than quoted directly; and that someone in 

an official position—rightly or wrongly—considered that disclosure of the information 

would be prejudicial. At this point, the newsman must, I think, ask himself—prejudicial 

to whom or to what?

To those who would cite the espionage laws as flatly prohibiting the media from publishing classified material, I would merely cite those first few words of the first amendment: 

“Congress shall make no law ....”
75

The Pentagon Papers in the Federal Courts

Statement of J.W. Roberts, Washington Bureau Chief, Time-Life Broad- casting, and Chairman, Freedom of Information Committee of the

Radio-Television News Directors Association, at congressional hearing, 

June 25, 197129

In his statement to the Moorhead subcommittee, J.W. Roberts of Time-Life Broadcasting characterized the Pentagon Papers controversy as part of a larger trend of curtailment of press freedom in the United States. Like Richard Kleeman, Roberts believed that journalists should be 

trusted to handle sensitive information in a responsible fashion, without interference from government officials. 

The court injunctions forbidding some of the Nation’s outstanding newspapers to publish 

information those papers believe it necessary for the public to know is only the latest, but 

most serious, in a long chain of events harmful to freedom of the press.... 

The Government has, in deciding to seek the injunction, done serious harm to the 

voluntary approach which has usually settled the questions of news reports involving matters of national security.

It seems hard to believe the Government can raise a question of national security 

now when in days of serious harm to the national security, World War I and World War 

II, journalists were allowed to make their own decision as to what confidential material to 

make public. Certainly I can’t see any existing threat to the national security equal to the 

world war days.

The Government also has taken a most intriguing move in delivering those 47 volumes of the McNamara study to Congress. The Government says it is doing it because 

there is such a danger that Congress would make judgments on the basis of what the Government calls “incomplete data” and “distorted impression” from the documents published 

so far that it had to deliver them to Congress. But it seems to me there is just as much danger that the public will reach judgments on the same faulty basis. Why, therefore, shouldn’t 

the public have a right to know what the Congress needs to know in order to do the job?

I would hope the committee also considers other legal problems, those involving 

subpoenas both from the Federal and State and local government.

The U.S. Justice Department has been attempting to force newsmen to serve as 

Federal investigators, by issuing subpoenas for confidential information, including films 

and tapes in various cases involving demonstrations, or operations of organizations like 

the Black Panthers. More and more state and local prosecutors and defense attorneys are 

doing the same thing, with a resulting curb on freedom of information. It is hard enough 

to persuade a source who wants to remain anonymous to talk on film or on audio tape even

29. Id. at 248–50.
76

Federal Trials and Great Debates in United States History

 by masking faces or electronically distorting voices. Subpoenas which allow outside legal 

forces to uncover those sources simply persuade those sources never to talk again and the 

public loses vital information on community problems.

Remarks of U.S. Representative William S. Moorhead at congressional 

hearing, and letter from members of the House Committee on Government Operations to Secretary of Defense Melvin Laird, June 28, 197130

During his subcommittee’s hearings on the Pentagon Papers, Chairman Moorhead announced 

that seven members of the House Committee on Government Operations had signed a letter 

to Secretary of Defense Melvin Laird requesting that he deliver the entire 47-volume study, as 

well as a separate study of the Tonkin Gulf incident, to the committee. The letter cited a statute 

requiring executive agencies to submit to the committee any information relating to a matter 

within its jurisdiction upon a request by seven of its members. Although Laird failed to comply 

with the committee’s request, he delivered both studies to the president pro tempore of the Senate 

and the Speaker of the House for use by members of Congress.

Remarks of Rep. Moorhead

For the past several years, we have seen leading administration spokesmen beat the drums 

for “law and order.” All citizens have been entreated to respect the law and abide by the 

laws of the land. Special attention has been paid by the President, the Vice President, and 

the Attorney General to those citizens whose hair might be slightly longer than the norm.

I submit that if these public officials expect Americans to respond and abide by the 

law, they must set the example. Today, the Secretary of Defense has that opportunity and 

sacred obligation. His oath of office requires it. I hope that he will counsel with the Attorney General—and perhaps even with the President—and that he will agree to abide by the 

law of the land—the law spelled out in title 5 of the United States Code in section 2954 

and provide the 47 volumes of the so-called “Pentagon Papers” and the Tonkin Gulf study 

to our Government Operations Committee, where our subcommittee members and staff 

who are cleared for top-secret security, as well as those on other subcommittees, may have 

full access to analyze these documents that are clearly within both the Foreign Operations 

and Government Information jurisdictional mandates.

A messenger is standing by at the door to deliver this letter, which is now signed by 

the required number of members, directly and immediately to Secretary Laird’s office in 

the Pentagon.

30. Id. at 327–28.
77

The Pentagon Papers in the Federal Courts

Letter to Secretary Laird

Dear Mr. Secretary: We, the undersigned members of the House Committee on Government Operations, pursuant to our statutory authority under title V, section 2954, of 

the United States Code (entitled “Information Furnished Committees of Congress on 

Request”), and in the exercise of our jurisdictional authority under statutes, rules, and 

precedents of the House of Representatives, hereby request that you furnish and submit to 

this committee a full and complete set of all volumes making up the so-called “History of 

the Decisionmaking Process in Vietnam.” This is the same data referred to by the President 

on June 23, 1971, in his announced decision to provide copies of these volumes to the 

Speaker of the House and the President of the Senate. We also request, under the same 

statutory authority cited above, a full and complete copy of the “Command and Control 

Study of the Gulf of Tonkin Incident.”

Copies of these two separate series of documents are requested to be delivered to 

room 2157, Rayburn House Office Building, by 5 p.m., Wednesday, June 30, 1971.

In view of the reported security classifications assigned to the above-captioned documents, the committee will assure the fullest measures to guarantee their integrity while in 

custody of the committee. Only staff members of the Government Operations and Foreign Affairs Committee having top-secret security clearances shall be permitted to study 

such documents in addition to Members of the House as provided under House rule XI, 

clause 27(c). When not in use, said documents will be stored in locked, GSA-approved 

security file cabinets.

 With best regards,

 Sincerely, Ogden Reid, William S. Moorhead,

 Henry S. Reuss, John E. Moss, John Conyers,

 Paul N. McCloskey, Jr., Bill Alexander.

Statement of Hon. William H. Rehnquist, Assistant Attorney General,

Office of Legal Counsel, U.S. Department of Justice, at congressional

hearing, June 29, 197131

Assistant Attorney General William Rehnquist worked on the Pentagon Papers case on behalf 

of the Nixon administration and evaluated the law of prior restraint to determine the administration’s chances of securing an injunction to prevent further publication of the papers. In his 

testimony before the Moorhead subcommittee, Rehnquist laid out his view of executive privilege, asserting that the withholding of certain sensitive information by the President was both 

justified by the doctrine of separation of powers and necessary to the effective operation of the

31. Id. at 358–66.
78

Federal Trials and Great Debates in United States History

executive branch, particularly in the areas of national defense and foreign relations. Later in 

1971, Richard Nixon nominated Rehnquist to the Supreme Court of the United States, where 

he served as an associate justice until Ronald Reagan appointed him chief justice in 1986. He 

served in that position until his death in 2005.

The doctrine of executive privilege, as I understand it, defines the constitutional authority 

of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch 

of the Government. This doctrine is implicit in the separation of powers established by the 

Constitution.

Related to the doctrine of executive privilege, but by no means coextensive with it, is 

the classification of material in the possession of the executive branch under the provisions 

of executive orders. These executive orders established rules governing the classification 

of documents involving national defense information, and prohibit disclosure by executive branch personnel of documents so classified to anyone not authorized to receive 

them. The Freedom of Information Act, which may be said to have established a “right to 

know” on the part of the public, as against the Government, exempts from its disclosure 

requirements “matters that are ... specifically required by executive order to be kept secret 

in the interest of the national defense or foreign policy.” This exemption in the Freedom 

of Information Act justifies refusal on the part of the executive to make classified material 

available to the general public. But the mere fact of classification by itself, of course, does 

not constitute a sufficient basis for withholding information from a committee of Congress, since most, if not all, congressional committees themselves are fully authorized to 

receive classified documents.

Third, and particularly in the public eye now, is the extent of the authority of the 

executive branch to seek the aid of the judicial branch in preventing the publication of 

material where such publication would be dangerous to the national security. By hypothesis, in this third situation, the material in question is already in the hands of the potential 

publisher, so there is no question of the executive being compelled to furnish it in order 

that it may be published. It is this question, of course, which has been the subject of the 

current litigation in the cases involving the New York Times and the Washington Post....

The Constitution nowhere expressly refers either to the power of Congress to obtain 

information in order to aid it in the process of legislating, nor to the power of the Executive to withhold information in his possession, the disclosure of which he feels would impair the proper exercise of his constitutional obligations. Nonetheless, both of these rights 

are firmly rooted in history and precedent.

It is well established that the power to legislate implies the power to obtain infor-
79

The Pentagon Papers in the Federal Courts

mation necessary for Congress to inform itself about the subject to be legislated upon, in 

order that the legislative function may be exercised effectively and intelligently.... 

In the field of foreign relations, the President is, as the Supreme Court said in the 

Curtiss-Wright case, the “sole organ of the Nation” in conducting negotiations with foreign governments. He does not have the final authority to commit the United States to a 

treaty, since such authority is reposed in the U.S. Senate and, of course, if implementing 

legislation is required, that legislation must come from the Congress. But the frequently 

delicate negotiations which are necessary to reach a mutually beneficial arrangement which 

may be embodied in the form of a treaty often do not admit of being carried on in public. 

Frequently the problem of overly broad public dissemination of such negotiations can be 

solved by testimony in executive session, which informs the members of the committee 

of Congress without making the same information prematurely available throughout the 

world. The end is not secrecy as to the end product—the treaty—which, of course, should 

be exposed to the fullest public scrutiny, but only the confidentiality as to the negotiations 

which lead up to the treaty.

The need for extraordinary secrecy in the field of weapons systems and tactical military plans for the conducting of hostilities would appear to be self-evident. At least those 

of my generation and older are familiar with the extraordinary precautions taken against 

revelation of either the date or the place of landing on the Normandy beaches during the 

Second World War in 1944.

The executive branch is charged with the responsibility for such decisions, and has 

quite wisely insisted that where lives of American soldiers or the security of the Nation 

is at stake, the very minimum dissemination of future plans is absolutely essential. Such 

secrecy with respect to highly sensitive decisions of this sort excludes not merely Congress 

but all but an infinitesimal number of the employees and officials of the executive branch 

as well.... 

[I]n the area of executive decisionmaking, it has been generally recognized that the 

President must be free to receive from his advisers absolutely impartial and disinterested 

advice and that those advisers may well tend to hedge or blur the substance of their opinions if they feel that they will shortly be second-guessed either by Congress, by the press, 

or by the public at large.

Again, the aim is not for secrecy of the end-product. The ultimate Presidential decision is and ought to be a subject of the fullest discussion and debate, for which the President must assume undivided responsibility. But few would doubt that the Presidential 

decision will generally be a sounder one if the President is able to call upon his advisers 

for completely candid and frequently conflicting advice with respect to a given situation.
80

Federal Trials and Great Debates in United States History

Public Response to the Court Decisions

Letters to the editor of The New York Times, June 25–July 12, 197132

This selection of letters to the editor of The New York Times in June and July of 1971 reveals 

some of the issues that concerned Americans in the wake of the publication of the Pentagon Papers. Some were concerned that the leak had harmed the country’s diplomatic relations with its 

allies and felt that the newspapers had acted irresponsibly in publishing classified information. 

Others focused on what the Pentagon Papers revealed about American mistakes in Vietnam and 

contrasted the United States with countries in which political speech was routinely suppressed.

From William C. Rogers, Director, Minnesota World Affairs Center, University 

of Minnesota, June 25, 1971

To the Editor:

The President cannot reply to foreign governments that he is not responsible for the 

actions of The Times and ask that our behavior be excused. As the President he is ultimately responsible to other countries for American foreign policy. The buck stops with him. 

This fact is hard for most of us to grasp, but it is usually understood by the occupant of 

that lonely office.

For fear of offending foreign governments, responsible democracies such as England, 

France and the United States do not usually open confidential files to public view until as 

many as twenty or thirty years after the diplomacy involved was conducted. The fact that 

domestic political advantages can be gained and lost by the publication of such documents 

does not excuse the embarrassment to other countries and the damage which can be done 

to the conduct of our foreign relations.

Was The Times unaware of this problem? Could it not at least have removed references to diplomatic dealings with countries other than Vietnam? The inclusion of these 

references may not cause the loss of any lives, but it might cause some loss of confidence in 

the reliability of the United States as a participant in international diplomacy.

For a nation of our size and importance this could be a very serious problem.

 

From Stanley Hoffman, Professor of Government, Harvard University, July 6, 1971

To the Editor:

The Pentagon papers reveal an extraordinary and continuous pattern of deception 

and self-deception. Decisions made on the assumption—rarely examined, and ritually re32. N.Y. Times, July 14, 1971, at 34; July 18, 1971, at 12; July 19, 1971, at 24.
81

The Pentagon Papers in the Federal Courts

peated—of the crucial importance of Vietnam for American interests.

Scenarios based on the wishful conviction that American expertise, might and tricks 

would suffice to galvanize a perpetually crumbling South Vietnam and to discourage Hanoi from its own inexorable commitment. Contingency plans that never envisaged what 

should be done in case these wishes turned out to be delusions.

A war continued despite the evidence of failure because of domestic pressures by the 

hawks and also because of unwillingness to acknowledge failure in a situation that left no 

other choices than mass extermination for victory, perpetual war for stalemate, and recognition of defeat.

Even men like Robert McNamara did not fully draw the lessons and consequences 

of their own disillusioned diagnosis, and realize that the whole castle of cards would probably collapse should the Americans ever withdraw, or that we could not, at the conference 

table, ever obtain from the Vietcong and from Hanoi the renunciation our arms had not 

been able to impose. The very fact that public support for the war had to be drummed up 

by arguments about Vietnam’s vital importance of course made retreat even more difficult 

and our predicament more acute.

And yet, if the public had been told the truth—that we were trying to “save” an inept 

and corrupt regime artificially created by the U.S. from the only authentic and determined 

nationalist political force in Vietnam—no support would probably have been obtained in 

the first place.

At a time when “Vietnamization” still aims at perpetuating the Saigon regime, and 

still reflects wishful thinking about the miraculous effects of continuing (although reduced) U.S. military support and economic aid, as well as about Hanoi’s ultimate exhaustion, only so courageous an act as Dr. Ellsberg’s could illuminate the landscape, show the 

patterns, and sound the most informed of warnings.

The real scandal is not Dr. Ellsberg’s dramatic opening of the curtain. It is what has 

been going on behind it—including the discretion, the timidity, the silence of those who 

knew the truth about the play but chose not to reveal it. The real surprise is that there 

weren’t more Ellsbergs in high places.

Rather than caricaturing him—as Joseph Kraft has done in his July 4 Week in Review article—as a James Bondish publicity seeker, we should salute in Ellsberg a man who 

deliberately risked criminal prosecution, character assassination and the sacrifice of his 

public career because of his conviction that the truth has greater value than security norms, 

and because he thought that he could better serve his country by making it face the realities 

than by preserving “secrets” that only help prolong a pointless and bloody disaster.

 
82

Federal Trials and Great Debates in United States History

From Shirley Hazzard, New York, July 12, 1971.

To the Editor:

Having recently and briefly visited South Korea, Singapore, Kuwait, Saudi Arabia 

and Ethiopia, Vice President Agnew reports that the leaders of those countries are “appalled” by the publication of the Pentagon papers.

It is inevitable that high officials in countries having little or no tradition of representative government or freedom of expression will be shocked by this illustration of the 

democratic process by which a nation can call its appointed representatives to account. Mr. 

Agnew will shortly be visiting Morocco, where mass executions have recently taken place 

without trial; he will no doubt have further commendable reactions to report from the 

officials he encountered at Rabat.

In citing the disapproval of such leaders as if it were an appropriate response, Mr. 

Agnew once again betrays the tragic incomprehension of other peoples and conditions 

that has led the United States into catastrophic error in Vietnam. If the leadership of this 

country has not yet adopted the model attitudes of the Saudi or Ethiopian regimes, it may 

be due to some assertion of reason by a literate public informed by a free press. Or perhaps 

there has been a slip in translation, and these heads of state professed themselves “appalled” 

by what the Pentagon documents disclosed, rather than by the fact of their disclosure.

 

Letters to jurists regarding the Pentagon Papers, 1971

The Pentagon Papers case garnered a great deal of attention throughout the United States, leading many members of the public to express their views on the case to the jurists involved, such 

as district court judges Murray Gurfein and Gerhard Gesell, court of appeals judge J. Skelly 

Wright, and Supreme Court justices Harry Blackmun, Byron White, John Harlan, and William Douglas. The letters addressed to the judges and justices were split between those who felt 

that the courts had acted properly to protect the freedom of the press and those believing that the 

newspapers had been allowed to flout the law and endanger national security.

Letter to Judge Gerhard Gesell from James William Bender III, Alexandria, 

Virginia, June 22, 197133

What I am concerned about, Sir, and why you and others so involved didn’t take it in to 

consideration—is how can a Newspaper or any other form of news media, defend their 

right to publish items from stolen or purloined documents? Why as defenders of the law 

wasn’t the first question—not on the right of publication—but the right of the Post or

33. Gerhard Gesell papers (on file with the Library of Congress).
83

The Pentagon Papers in the Federal Courts

Times to have unlawful possession of this purloined material? ... 

Would appreciate a reply—not on your decision for or against publication—but as 

to why the question was not settled as to how these papers could illegally have in their 

possession such documentation. You’d send a man to jail for acting as a “Fence” for stolen 

goods—wouldn’t you?

Letter to Judges Gerhard Gesell and Murray Gurfein, June 21, 1971 from Albin 

Anderson, Grand Junction, Colorado, June 21, 197134

Re: United States of America vs. The New York Times and Washington Post.

Gentlemen:

Your respective actions in the above entitled matters reflect, again, the ease with 

which the federal courts disregard the doctrine of the separate but equal apportionment 

of federal powers among the legislative, executive and judicial branches of the federal government.

The issue raised by the publication of portions of the classified Pentagon report on 

the origins of the Vietnam conflict, is not whether the publication would impair national 

security but whether the material represents portions of government reports which the 

Executive branch determines to be classified and top secret. That determination is within 

the sole and exclusive constitutional competence of the executive department and is not 

subject to review, amendment or nullification by either the congressional or judicial departments.

A shroud of secrecy and confidentiality must necessarily cover much of the toil of the 

executive department in national and international fields, and if that cover may be pierced 

at will by congressional inquiry or judicial review, then the American dream will slowly become the nightmare recalling the pattern of European parliament or despotic governments 

which our wise Forefathers sought to avoid.... 

A copy of this letter is being sent to the Chief Justice with the suggestion that he cause 

all judges of the inferior federal courts to attend seminars on Constitutional Law with the 

Constitution and “The Federalist” as the two principal sources of study and review. Many 

federal judges need to be helped to return to the duty of enforcing the Constitution as it 

exists in the light of the spirit in which it was written instead of using it as a vehicle for the 

expression and enforcement of personal predilictions....

 34. Id.
84

Federal Trials and Great Debates in United States History

Letter to Justice Harry A. Blackmun from Daniel M. Wilkes, Orinda, California,

July 197135

Dear Sir:

I believe strongly that in the case of The New York Times and the “Pentagon Papers” 

the Court has deprived me of inherent Constitutional rights.

I have read all of the opinions, and in none do I find reference to what I, as a lay 

citizen, believe to be a central right that has been violated by the decision. This is the right 

of the citizen to hold accountable those to whom he yields power to make decisions on his 

behalf. It seems to me that a disoriented, rattled Court has legislated a part of this right out 

of existence in the New York Times case, and that this issue has not even crossed the minds 

of any of the Justices of the Court.

Under our system, the President is vested with authority to provide for national 

defense and to conduct foreign affairs. He is directly accountable to the voters for these 

responsibilities. The Times arrogated to itself the right to dilute these powers, and the 

Court concurred. Nor is it clear what limits there are on the powers of the Times—or any 

publication—to decide what will injure the nation. Neither the Times nor any other publication is accountable to me. Nor is the Supreme Court.

The decision sent a shudder of fear and foreboding through me and many of my 

acquaintances, for the reasons cited above. If citizens have lost faith that they have any 

influence over their government, the Court need not look afield for reasons.

The best that can be said for the Court’s decision is that it makes a game of the national safety. Presumably, any publication can now publish anything it gets its hands on, 

even if it means a death sentence for the nation. After publication, the Court, if its members survive, will decide among the ruins whether or not the nation has been injured.... 

Letter to Justice Harry A. Blackmun from Guy A. Schepis, vice president, CT 

Engineering Corp., Lawndale, California, July 26, 1971

Dear Associate Justice Blackman:

Through no fault of yours, the Supreme Court has made a complete mockery of our 

industrial security program, a hero of a man accused of violation of our espionage laws, 

and has further confused and split the nation.

The decision in favor of allowing the newspapers to publish information still classified Top Secret, in the guise of “freedom of the press”, astounds and infuriates sane and 

law-abiding Americans.

The Supreme Court must now make clear to the people of the United States their

35. Harry A. Blackmun papers (on file with the Library of Congress).
85

The Pentagon Papers in the Federal Courts

philosophy regarding law and order vs. freedom of any individual or newspaper to publish 

classified information simply because “in their opinion” the people should know. The Supreme Court ruled that the information was not dangerous to the security of the United 

States, which may be true; however, that was really not the issue. It is incredible that the 

real issue, that of allowing a newspaper to publish classified information, was overlooked in 

favor of the old “freedom of the press” routine. Has the Supreme Court now established a 

precedent condoning law-breaking and disclosure of classified information? Is it now only 

a matter of interpretation by individuals? Let’s hope not, for our country would suffer a 

serious regression and we might well revert back to a nation of troglodytes.... 

Letter to Justice Harry A. Blackmun from Zalkind Klublock Silverglate,

Boston, Massachusetts, July 21, 1971

Dear Justice Blackmun: 

I find it incredible that a man such as yourself, with a reputation (perhaps overrated) 

for intelligence and intellectual integrity, could have the temerity to suggest that it is the 

Times and other newspapers, and perhaps even your Brothers who supported the Court’s 

majority opinion, rather than the discredited Government officials, bureaucrats, generals, 

and “intellectuals”, who deserve the blame for “the death of soldiers, the destruction of 

alliances, the greatly increased difficulty of negotiation with our enemies, the inability of 

our diplomats to negotiate”, as well as the holding of prisoners of war and other tragic 

results of the current undeclared war in Indo-China. If the majority of the Justices on the 

Court had your respect for civil liberties, criticism of this insane war might never have 

gotten loud enough to make the Government aware that it was fighting a war which even 

its own citizens consider unwarranted, immoral and illegal. I trust that you will remain in 

the minority on momentous issues such as these for a long time to come.

Letter to Justices Harry A. Blackmun, Byron White, and John Harlan from

Eileen Woods, San Francisco California, July 17, 197136

Messrs. Blackmun, White and Harlan:

Gentlemen:

I have noted for a long time the attempt of this Administration, particularly, to cow, 

intimidate, and generally to suppress the communications media.

I disagree with this un-American procedure. I think you should actually consult with 

the Bill of Rights, and not depend on instructions from The White House, including John 

Mitchell. Of course, if you wish to tear this country apart further, you can proceed as you 

36. Id.
86

Federal Trials and Great Debates in United States History

have. Do you wish to widen the gap between the administration and the people? It seems 

to me this is obviously true.

And just what do you mean, Blackmun, by threatening newspapers because they 

have shown the stupidity and downright inordinate duplicity of this and prior Administrations? I noted in your dissent that you did so threaten. Just what punishment would 

you think suitable for the people in power who have “generated” at least 6 million refugees 

in Indo-China, been responsible for probably 1-1/2 million deaths there, and who knows 

how many permanently wounded, maimed, etc., excluding the 50 thousand U.S. soldiers 

killed, I don’t know how many wounded, and have brought on drug addiction in the 

countless thousands, and made murderers.

Naturally, you are out of touch with ordinary people in this country, and probably 

don’t care much about them, either, but there is a grass roots opinion, which you are hearing now from a tax-paying white American citizen, age 59 plus, and who is

 VERY MUCH ASHAMED

Letter to Justice William O. Douglas from Mrs. Jacque Foreman, San Angelo, 

Texas, June 25, 197137

Dear Mr. Justice Douglas:

I am hopeful that you, as a representative of the people of the United States, will see 

to it that the government is NOT allowed to take over the press and tell them what to print 

or not to print. If we let the government take over the press, we might as well put up a big 

sign which says: “America Has Gone Communist.” Taking over the press is just about the 

last step we have left to take.

The so-called “secret” Vietnam papers would not, I do not believe, jeopardize the 

national security. I feel sure they would undoubtedly show that the leaders of our nation 

were selfish, that they wanted the Vietnam War for their own private political reasons, and 

that the welfare of our nation and its people was not considered even a little teeny bit.

The Vietnam War has been political, is continuing to be political, and unless we do 

something about it, right now, we are going to be in real trouble. Our nation was founded 

on a Constitution—the greatest in the world—by the people, of the people and for the 

people. Let’s not sell our nation down the river. Surely political ambitions can be put aside, 

for a change, in an effort to save this most wonderful, but most mismanaged, nation in 

the world.

37. William O. Douglas papers (on file with the Library of Congress).
87

The Pentagon Papers in the Federal Courts

Letter to Justice William O. Douglas from Harold Berry, Detroit, Michigan, 

July 19, 1971

Dear Justice Douglas:

Although it is customary to write Congressmen and Senators for the purpose of 

exerting influence, I realize that Justices of the Supreme Court are immune from this type 

of pressure.

However, as a citizen most concerned with the status of American liberties, I feel 

compelled to extend words of praise to you for articulating so well the ideals embodied in 

the First Amendment in connection with the recent New York Times case.

Your opinion should stand out in history books and is absolutely inspiring in this era 

which has witnessed so many failures of democratic practice.

Letter from Reverend George R. Davis (pastor and friend of President Lyndon 

B. Johnson), National City Christian Church, Washington, D.C., to justices of 

the Supreme Court, U.S. Senator Mike Gravel, and editors and publishers of The

New York Times and The Washington Post, July 2, 197138

It is frightening to know that the majority opinion of the Supreme Court was based in the 

final analysis:

1) Upon an act of theft;

2) And the papers taken from that act of theft were released by certain newspapers at a 

time based upon their own whim;

3) That they were released on the eve of an important decision about to be made in the 

Congress of the United States;

4) That Mr. Ellsburg released those papers (whoever took them), to a carefully selected 

number of newspapers, which in itself contradicts any idea of freedom of the press... 

5) That this action by the Supreme Court suggests that any employee working in any 

office in any place of business, the government, military, education, or any other facet of American life, is justified “stealing” what he comes to the conclusion, according 

to “his good conscience”, is his to take, because he believes he is serving a noble end. 

...

I was literally amazed that the publishers and legal representatives of the major newspapers involved declared that they received all news and then published what they saw fit 

to publish or believed should be published, but in the same breath denied to the government the right to decide what it would or would not release, and that these newspapers 

retained stolen documents to be used according to their concept of “freedom of the press” 

38. Gerhard Gesell papers (on file with the Library of Congress,).
88

Federal Trials and Great Debates in United States History

without revealing this to the authorities, and did not believe they were morally obligated 

to share this news with other newspapers.... 

I wanted to be one of a handful of Americans who would be writing their objections, 

over against the thousands who, no doubt, will be commending these recent actions by the 

press and courts as being noble and high-minded.

Letters to Neil Sheehan, June–July 197139

Neil Sheehan, the reporter who authored The New York Times’s articles on the Pentagon Papers, received a great deal of mail from the public during and after the litigation. Like the letters 

to the judges and justices who participated in the case, the correspondence aimed at Sheehan 

was split between those who viewed him as a hero and those who condemned him as a traitor.

From Edith Macko, Somerville, N.J., June 17, 1971

Attention of Neil Sheehan:

I for one and I hope that that many more of my fellow Americans feel that your 

unnecessary spying on our special security files for the articles on the “Vietnam War” was 

totally unnecessary. In trying to reveal to our nation a “scoop” you have helped to endanger 

the security of all of us. You have tried to make us feel that we cannot trust our government, instead you have caused many of us to think just what kind of newspaper the “New 

York Times” is! Whose side our you really on? Your “security” in obtaining this information 

must have been tighter than those who secured it from you. This leaves me with a feeling 

of a very widened insurity of your paper.

Frankly you have not done us a service—because you have lost respect in our eyes—

you forgot to remember a principle code of ethics—(If the people have a right to know) let 

it come from those who do know!

Thanks for nothing!

From G. D. Batcheller, Major USMC, Quantico, Virginia, 5 July 1971

Dear Mr. Sheehan,

I find polite words completely inadequate to convey to you my complete and total revulsion for your actions in the handling of the top secret Pentagon papers. Your 

decision to serve as Ellsberg’s pander places you in company with some of the most illustrious traitors of the century. Your treason is especially despicable in that you cloak it 

with a right from the Constitution that you so enthusiastically, and profitably, undermine.

39. Neil Sheehan papers (on file with the Library of Congress,).
89

The Pentagon Papers in the Federal Courts

You are a source of revulsion to decent Americans, a source of embarrassment to our 

friends, a source of comfort to our enemies “foreign and domestic”, and a source of joyous 

anticipation to Adolph, who must be stoking his ovens and eagerly awaiting your arrival.

I am sure circulation is up, and I know the Supreme Court has decided that you have 

a legal right to practice your treason. My satisfaction comes from the knowledge that we 

all die. When your time comes you will pay the price.

 

From Mrs. Kenneth S. [Margaret] Clark, New York, N.Y. , June 15, 1971

Dear Mr. Sheehan,

From the bottom of my heart, I send you my thanks for the invaluable service you 

have rendered, and my most sincere congratulations on the wonderful job you have done.

Most of us deserve to know the truth. Then perhaps there is a chance to see clearly 

and end this tragic most immoral deed, this horrible war.

If only people knew the whole truth, nothing but the truth, the way it started. When 

it really started.... 

You have done an unforgettable job. We should be grateful to you indeed, and the 

Times should be proud of you always.

Press Response to the Court Decisions

Many newspapers published editorials on the Pentagon Papers case, both during the litigation and in the wake of the Supreme Court’s decision to allow publication to proceed. 

Unsurprisingly, a large majority of the editorials favored publication, arguing that the 

government conducted its affairs with excessive secrecy and that a prior restraint would 

pose a greater threat to freedom and security than would the public exposure of classified 

information. Some columnists, including conservative author William F. Buckley, decried 

the Court’s decision, however, believing that newspaper editors were not accountable to 

the public in the same manner as elected officials and were not qualified to make unilateral 

decisions in matters affecting national security.

“The Vietnam Documents,” June 16, 197140

The day after it was temporarily ordered to halt publication of the Pentagon Papers by Judge 

Murray Gurfein of the U.S. District Court for the Southern District of New York, The New

40. N.Y. Times, June 16, 1971, at 44.
90

Federal Trials and Great Debates in United States History

York Times published an editorial decrying “an unprecedented example of censorship” and asserting its obligation to inform the American public about the content of the papers.

What was the reason that impelled The Times to publish this material in the first place? 

The basic reason is, as was stated in our original reply to Mr. Mitchell, that we believe “that 

it is in the interest of the people of this country to be informed....” A fundamental responsibility of the press in this democracy is to publish information that helps the people of the 

United States to understand the processes of their own government, especially when those 

processes have been clouded over in a hazy veil of public dissimulation and even deception.

As a newspaper that takes seriously its obligation and its responsibilities to the public, we believe that, once this material fell into our hands, it was not only in the interests 

of the American people to publish it but, even more emphatically, it would have been an 

abnegation of responsibility and a renunciation of our obligations under the First Amendment not to have published it. Obviously, The Times would not have made this decision if 

there had been any reason to believe that publication would have endangered the life of a 

single American soldier or in any way threatened the security of our country or the peace 

of the world.

The documents in question belong to history. They refer to the development of 

American interest and participation in Indochina from the post-World War II period up to 

mid-1968, which is now almost three years ago. Their publication could not conceivably 

damage American security interests, much less the lives of Americans or Indochinese. We 

therefore felt it incumbent to take on ourselves the responsibility for their publication, and 

in doing so raise once again the question of the Government’s propensity for over-classification and mis-classification of documents that by any reasonable scale of values have long 

since belonged in the public domain.

We publish the documents and related running account not to prove any debater’s 

point about the origins and development of American participation in the war, not to 

place the finger of blame on any individuals, civilian or military, but to present the American public a history—admittedly incomplete—of decision-making at the highest levels of 

government on one of the most vital issues that has ever affected “our lives, our fortunes 

and our sacred honor”—an issue on which the American people and their duly elected 

representatives in Congress have been largely curtained off from the truth.

It is the effort to expose and elucidate that truth that is the very essence of freedom 

of the press.
91

The Pentagon Papers in the Federal Courts

“Freedom and Restraint,” June 23, 197141 

The immediate issue in the Post and Times cases is direct and simple: Is an American free 

to speak and publish without prior restraint or censorship? The answer, under the First and 

Fourteenth Amendments to the Constitution, is a resounding yes. The only exceptions 

arising from court interpretations of the Constitution are in cases where utterances would 

represent a clear and present danger to the nation.

Up until now, this fundamental principle of our democracy has been so well accepted 

that the government has never before attempted to block a newspaper from publishing on 

national security grounds.

There are those, no doubt, who feel that the Constitutional prohibition against 

pre-publication restraint grants too broad a right to the organized press—newspapers, 

magazines and book publishers—allowing it to act irresponsibly with impunity. To some 

extent it does, but our forefathers judged and events have proved that this was a small risk 

to run for the precious right for all citizens to have freedom of thought and expression.

And in fact, the organized press cannot act with impunity. While prior censorship is proscribed, authors, publishers and speakers can be held responsible after the fact if they have 

caused damage out of malice or have disregarded the law. Laws on this are admittedly 

liberal in the interests of freedom of expression but it is not easy in this country to do widespread malicious damage with impunity. Even if they are allowed to publish, the Times 

and Post still will be accountable for what they publish.

There are other restraints. It is sometimes argued that the organized press has no 

right to override the decisions of government on what should or should not be confidential information. After all, this argument goes, the government is elected and can be held 

responsible by the public but the press cannot be.

In reality, newspapers—and particularly successful and influential newspapers—are 

subject to much the same kinds of restraints and pressures from the public as government. 

Their influence, as with government, depends upon public confidence. If their readers 

lose confidence they are in much the same position as failed government leaders. Unlike 

government, however, their primary role in our society is to give the public information 

honestly and fearlessly. They should be judged by the public on how well they perform 

their role within the limits of national security.

“Our Colleagues Err on War Secrets Issue,” June 27, 197142

The Detroit News does not agree with those of our press colleagues contending that na41. Wall St. J., June 23, 1971, at 14.

42. Detroit News, June 27, 1971, at 1.
92

Federal Trials and Great Debates in United States History

tional interest—and the cause of a free press—are served by the current battle over publication of secret Pentagon papers.... 

We do not believe the New York Times and other involved newspapers acted responsibly and in the public interest when—without even trying to use established procedures 

for declassification of secret papers—they chose to publish an edited version of what it now 

appears was an incomplete account of our involvement in the Vietnam war.

Despite our devotion to, and dependence upon, the basic rights guaranteed under 

the First Amendment, we do not accept the premise that the doctrine of a free press is an 

unrestricted license to print any secret document, the publication of which, in an individual editor’s opinion, would be in the national interest.... 

Granted, the bureaucratic tendency to cover mistakes with a “top secret” stamp is a 

problem. It always has been and newspapers have an obligation to fight it. But the solution 

does not lie in a grant to an individual—be he editor, scientist or public official—of power 

to substitute his personal definition of national interest as a basis for declassification.

“Disclosure and Security,” July 2, 197143

The State Department and some other branches of this administration claim that they are 

reviewing their classification policies and we can only hope that it will prove to be a really 

serious effort. We would hope that Congress will also exert strong pressure for greater disclosure and there are signs that it will do just that. Unwarranted secrecy and the failure to 

inform the public and Congress in advance of vital policy decisions has seriously weakened 

the credibility of the United States government.

Restoring that credibility may well be more vital to the nation’s security than anything else the government could do. Substantive action, not mere salesmanship, will be 

needed and one of the most effective actions would be wholesale declassification of information that should long ago have been in the public domain.... 

Newspapermen might wish that the full court could have been unequivocal in upholding the freedom guaranteed by the First Amendment. The freedom was upheld, however, and that is what matters for the moment. If it all has led to a better understanding of 

where the nation’s security really lies then it has all been worthwhile.

In our view, the nation’s security lies in a continuing willingness of its people to face 

unpleasant facts, to engage in full and earnest debate and to protect the free, democratic 

institutions that make those things possible.

43. Wall St. J., July 2, 1971, at 6.
93

The Pentagon Papers in the Federal Courts

“Mr. Mitchell Should Go,” June 22, 197144

It is difficult to see how John N. Mitchell can remain the Nixon Administration’s Attorney 

General after the monumental blunder of the legal attack on The New York Times and the 

Washington Post. Mr. Mitchell’s career in Washington has been a series of mistakes, but 

perhaps none so damaging to the Administration as this one.

It is a worse error because it needn’t have happened. Instead of moving to accept the 

situation when The New York Times published historical articles based on secret Pentagon 

papers, Mr. Mitchell tried informally to have them stopped: and when his appeals to The 

Times and the Post failed, the Justice Department rushed precipitately into court with 

suits it has already lost in the lower courts and is likely to lose in the higher.

But no matter what the courts do, Mr. Mitchell has lost. He has shown where his 

Administration stands on constitutional rights, specifically on the First Amendment. If the 

media had not already been turned against the Administration by the harassment of Mr. 

Nixon’s spokesman Vice President Agnew, Mr. Mitchell has given it an unassailable reason 

for hostility. From a tactical viewpoint, Mr. Mitchell has wrongly taken the Administration 

out on a limb from which it cannot retreat....

We think it likely Mr. Mitchell is motivated in part by philosophical conviction, 

in part by a misguided zeal for political advantage. But whatever prompts him to act, he 

has shown a really astonishing gift for doing the wrong thing. Thus he hurried to court 

in The New York Times case with the unprecedented claim that national security permits 

prior restraint on the publication of a newspaper. After hearing the evidence United States 

District Judge Murray Gurfein ruled against the Government, a ruling Mr. Mitchell might 

well have foreseen had he deliberated a little more on the implications of what he was 

about to do.

Mr. Mitchell is Mr. Nixon’s former law partner and intimate adviser, but the question is how long the President can continue to accept such consistently bad advice. The 

President owes it to the people, not to speak of his party, to allow Mr. Mitchell to withdraw 

from public life.

 “A loss, not a gain,” July 4, 197145

The Supreme Court’s 6-to-3 decision to permit publication of articles on the origin of the 

Vietnam war based on top secret Pentagon documents represents a net loss for freedom of 

the press.

The Houston Post defends the rights guaranteed by the First Amendment. Free 

speech and a free press come to the same thing—the right of the people to be informed, 

44. St. Louis Post-Dispatch, June 22, 1971, at 24.

45. Oveta Culp Hobby, Houston Post, July 4, 1971.
94

Federal Trials and Great Debates in United States History

to dissent. But to be a free press means to accept the responsibility of being a free press.

As Justice Oliver Wendell Holmes showed long ago, the First Amendment’s protection cannot be unlimited. We are guaranteed free speech, he said, but we cannot falsely cry 

“Fire!” in a crowded theater.

Newspaper editors are not employes of the government, but they must share with the 

government the responsibility of protecting the people. When editors set themselves above 

not the law but the security of the country, the country may be endangered.

Publication of the Pentagon documents is too grave a responsibility for decision 

by any editor acting alone. It is impossible for an editor to know what is sensitive and 

what is not sensitive in the government’s operations.

But an editor can ask if a document affects the nation’s well-being; a procedure 

exists for declassifying documents that may no longer be sensitive. The newspapers 

concerned did not ask if the documents were sensitive, if they could be declassified. 

The question does not concern the government’s embarrassment but whether the 

vital interests of the people were endangered.

“Mr. Blackmun’s Dissent,” July 6, 197146

Let’s face it, Justice Blackmun made a very telling point about The New York Times in 

his dissenting opinion. The paper had taken to using the argument of time pretty much 

as convenient. Sometimes it gave the impression that every second counted. Other times, 

that what the hell we are dealing in matters that are ancient history.

Justice Blackmun remarked the irony that The New York Times took three months to 

prepare its handling of the Pentagon Papers. Then, when The Times fired its first shot on a 

Sunday morning, the Justice Dept., the following day at noon, sent a telegram to The Times 

announcing that it would seek an injunction against continued publication of the series.

The Times was apparently outraged at a) the length of time the Justice Dept. took 

in communicating its position (why hadn’t Martha Mitchell called The Times the evening 

before?), and b) at the delay, caused by the lower court’s injunction, in making the series 

available to the public.

In other words, if The Times, having come into possession of the documents early in 

March, could wait until the middle of June to publish the papers, then why shouldn’t the 

courts have been given a little time to ponder the question whether the series contained information the release of which might be gravely prejudicial to the national interest? Under 

the circumstances, Mr. Blackmun concluded, the courts, under the synthetic pressure of

the situation, had been stampeded into giving opinions which took only cursory account

of the factual situation....

46. William F. Buckley, Universal Press Syndicate, July 6, 1971.
95

The Pentagon Papers in the Federal Courts

Accordingly, said Mr. Blackmun, we are left pretty much at the mercy of the discretion of the newspaper publishers, in this case The New York Times and The Washington 

Post. “I strongly urge,” said Mr. Blackmun, “and sincerely hope, that these two newspapers 

will be fully aware of their ultimate responsibilities to the United States of America.”

It is a thin lifeline. Not because there is any reason to suppose that the publishers of 

these papers desire anything less than the best for America, but because we are in fact asked 

to rely on the final authority of two individuals, Mr. Sulzberger and Mrs. Graham, who 

came by dynastic succession to their authority. Every now and then, on a fixed schedule, 

we are given the opportunity to pass judgment on the work of our political representatives.

We are not given such power over The Times and The Washington Post.

“The Crisis Coming for a Free Press,” July 12, 197147

Although the Supreme Court refused to impose a prior restraint on further publication of 

the Pentagon Papers, investigative journalist I.F. Stone believed that the justices’ individual

opinions—especially those of Justices Byron White and Thurgood Marshall, which suggested that 

the government might be able to prosecute the newspapers after the fact—as well as the indictment of Daniel Ellsberg on charges of espionage and theft, signaled an impending government 

crackdown on the freedom of the press.

In the Pentagon Papers, the government had a poor case on the facts. It had an even poorer 

case on the law. It is a pity that the upshot was not the kind of historic defense of a free 

press that the weak pleadings and the grave circumstances called for. The press did its duty 

but the Supreme Court did not. Its splintered opinions left a bigger loophole than before 

for prior restraint—something English law abandoned in 1695 and the American press 

has never experienced. In addition five of the nine Justices encouraged the government to 

believe that they would give it wide latitude if it sought to punish editors for publishing 

official secrets after they did so instead of trying to enjoin them in advance. Two Justices 

indeed spent most of their opinions helpfully spelling out possibilities for successful criminal prosecution. It will be a miracle if this Administration, which is almost paranoid in its 

attitude toward the media, is not encouraged to include editors and reporters among the 

“all those who have violated Federal criminal laws” the Attorney General now says he will 

prosecute.

Fresh Need for Secrecy

The coming attempt to prosecute for violation of the government’s classification orders 

involves nothing less than the future of representative government. For if the government 

47. I.F. Stone, I.F. Stone’s Bi-Weekly, Vol. XIX, no. 14, July 12, 1971, at 1–4.
96

Federal Trials and Great Debates in United States History

can continue to abuse its secrecy stamps to keep the press, the Congress and the people 

from knowing what it is really doing—then the basic decisions in our country are in the 

hands of a small army of faceless bureaucrats, mostly military. The struggle comes at a climactic moment when Hanoi’s new peace offer and public weariness with the war make it 

all the more necessary for the bureaucratic machine to prevent new leaks by intimidating 

its own mavericks and the press. Duplicity is more requisite than ever when the other side 

makes it necessary plainly to choose between release of the prisoners or continued pursuit 

of a military-political victory in South Vietnam. From every indication, Nixon’s answer, 

however veiled, will be to pursue the war. This will intensify his conflict with the media....

Nullifying the Intent of the Framers

The government made an even poorer showing on the law. Solicitor General Griswold’s 

argument was downright trivial and the few precedents he cited were irrelevant and quoted out of context. Unfortunately the newspaper lawyers were no better. Never was a great 

case argued so feebly. No one took the First Amendment as his client. The defense lawyers 

argued the case as narrowly as possible in order to get their newspaper clients off the hook. 

Prof. Alexander Bickel, whom the New York Times retained specially for the occasion, is no 

firm defender of the First Amendment; he holds the “balancing” view Frankfurter among 

others propounded. This holds, as Griswold flatly said during argument, that where the 

First Amendment says “Congress shall make no law... abridging freedom of the press,” it 

does not mean what the plain words say but only that freedom of the press must be “balanced” against other public considerations. Bickel agrees with Griswold. This nullifies the 

intention of the Framers.

 

Daniel Ellsberg and the Criminal Case Involving the

Release of the Pentagon Papers

Walter Cronkite, CBS News interview with Daniel Ellsberg, June 23, 197148

A few days before Daniel Ellsberg surrendered to authorities and was indicted by a federal grand 

jury on charges of theft and espionage, he gave an interview to Walter Cronkite of CBS News 

at an undisclosed location. Ellsberg stressed his belief that the executive branch had become too

powerful and too secretive and criticized the United States government for ignoring the impact 

of its foreign policy on the Vietnamese people.

48. Transcript of CBS News Special Report: “The Pentagon Papers: A Conversation with Daniel Ellsberg,” 

June 23, 1971, Theodore F. Koop papers (on file with the University of Iowa Libraries, Iowa City, Iowa).
97

The Pentagon Papers in the Federal Courts

Ellsberg: So far, I think, both from the papers themselves and from the reaction to them from the public and from the administration, I think 

the lesson is that the people of this country can’t afford to let the President run the country by himself, even foreign affairs any more than domestic affairs, without the help of the Congress, without the help of the

public. Obviously, the public needs more information than it’s gotten from the 

past four Presidents in the area of Vietnam, if they’re to discharge their responsibilities, I think....

It seems to me that the—again, the leaders ... have fostered an impression that 

I think the rest of us have been too willing to accept over the last generation, 

and that is that the Executive Branch is the government, and that indeed they 

are leaders, in a sense that may not be entirely healthy, if we’re to still think of 

ourselves as a democracy. I was struck, in fact, by President Johnson’s reaction 

to these revelations as “close to treason,” because it reflected to me this sense 

of—that what was damaging to the reputation of a particular administration, a 

particular individual, was in effect treason, which is very close to saying “I am 

the state.” And I think that quite sincerely many Presidents, not only Lyndon 

Johnson, have come to feel that. What these studies tell me is we must remember this is a self-governing country. We are the government....

[T]he fact is that in the seven to ten thousand pages of this study, I don’t think 

there is a line in them that contains an estimate of the likely impact of our policy on the overall casualties among the Vietnamese or the refugees to be caused, 

the effects of defoliation in an ecological sense. There’s neither an estimate nor a 

calculation of past effects, ever. And the documents simply concern the internal 

concerns—reflect the internal concerns of our officials. That says nothing more 

nor less than our officials never did concern themselves, certainly in any formal 

way or in writing, and I think in no informal way, either, with the effect of our 

policies on the Vietnamese.

“Unlike the Others, He Was ‘A Man Driven,’” July 4, 197149

A July 1971 profile of Daniel Ellsberg in The New York Times focused on his passionate and 

forceful opposition to the Vietnam War as well as his flair for the dramatic.

At first glance Mr. Ellsberg seemed an unlikely candidate for such a role. He is a defense 

intellectual like many others. Like others, he was trained as an economist and compiled 

a brilliant record at Harvard and in Cambridge, England. Like others he worked in the 

1950’s for the Rand Corporation, a semi-public center of defense studies in Santa Monica, 

Calif. Like others he was drawn to the Pentagon of Robert McNamara in the 1960’s. Like

49. Joseph Kraft, N.Y. Times, July 4, 1971, at 1.
98

Federal Trials and Great Debates in United States History

others he was an early advocate of the Vietnam war and went on the spot to help in the 

fighting. Like others, he changed his views and became a dove.

But unlike all the others Mr. Ellsberg gave the impression of a man driven. If his 

mind seemed especially powerful, so did the strength of his feelings. Officials and journalists who encountered him over the years were repeatedly impressed by his bent for dramatization and self-dramatization. He loved to run covert operations and once demonstrated 

the possibilities by leaving a dinner party only to return five minutes later disguised as an 

Arab. One State Department aide recalls that on a routine jeep trip around Saigon, Mr. 

Ellsberg made him keep his head under cover and carry and even cock a gun. Many newsmen remember that Mr. Ellsberg was always arranging clandestine meetings at odd hours 

and that whether in Saigon or Santa Monica or Washington he would keep looking over 

his shoulder, persuaded he was being followed.... 

He ran his operation with all the skill of the trained strategist. The first massive leak 

of the full papers, minus only three volumes on peace negotiations which Mr. Ellsberg 

thought should be kept confidential, went—he implied last week—to The Times. A schedule of subsequent leaks to papers all over the country was worked out.

Just before The Times began publication, Mr. Ellsberg and his wife slipped away 

from their home in Cambridge. As soon as his name surfaced he appeared on the Cronkite 

show, then slipped from sight again. When an injunction stopped The Times from publication, The Washington Post popped up with the material; then The Boston Globe, The 

St. Louis Post-Dispatch, The Chicago Sun-Times and The Los Angeles Times. By the time 

he gave himself up Monday, Mr. Ellsberg was virtually certain publication could not be 

stopped. “It’s a beginning of history,” he said in his Thursday press conference, “a beginning of honest history.”

“Ellsberg: The Battle Over the Right to Know,” July 5, 197150

In July 1971, Time magazine published an extensive piece on Daniel Ellsberg, detailing his 

personal history and attempting to provide some insight into his motivation for leaking the 

Pentagon Papers.

One fundamental question bothers many Americans. Just who is this man Ellsberg, a distinctly minor figure who dares to challenge four Presidents, assails the decisions of some 

of the keenest minds ever to have been attracted to national security service, and scatters 

classified documents like chain letters across the country? ... 

Ellsberg is too complex a man to fit neatly any mold, even that of the insulated aca50. Time, July 5, 1971.
99

The Pentagon Papers in the Federal Courts

demic, so shocked at his first sight of a combat-torn body that he denounces war. Ellsberg’s 

conversion was much more gradual—although, as with nearly everything he has done, 

once he had a change of mind he threw all of his spirit and intelligence into it, moving 

from one extreme to another.... 

At Harvard, which he attended on a Pepsi-Cola scholarship, Ellsberg similarly spread 

his talents broadly. He debated, edited the campus literary magazine, wrote editorials for 

the daily Crimson, was elected to Phi Beta Kappa, and married a Radcliffe sophomore....

Ellsberg’s education was interrupted by four years of service shortly after the Korean 

War. He was described by a fellow Marine as a “tough, hard-nosed hatchet man.” ... 

From Harvard, Ellsberg moved to the Rand “think tank,” where his expertise in 

probability theory, particularly as applied to war analysis, was much in demand.... When 

the Pentagon’s Assistant Secretary of Defense John McNaughton, an expert on nuclear test 

bans, needed an assistant in 1964, Ellsberg landed the job. Now he was on the inside of 

U.S. strategic studies—and a most contented man. He was so engrossed in his work that 

he was surprised and shaken when his wife Carol sued for divorce later that year.... With 

his neglected marriage broken, he seemed to be re-examining his whole life, which had 

centered on a successful but conventional career. He still did not question U.S. aims in 

South Viet Nam, but he was concerned about the lack of success and wanted to view the 

problems in the field. Major General Edward Lansdale, recruiting more help for his highly 

independent intelligence operations, yielded to Ellsberg’s pleas to be allowed to join him 

in Viet Nam.... 

Despite his occasional displays of bravado, Ellsberg began to worry about needless 

killing. He was later to tell a U.S. Congressional conference about flying over a “free-fire 

zone” with a U.S. pilot who triggered his M-16 at almost anyone who moved on the 

ground. “This game goes on daily in almost every province of Viet Nam,” Ellsberg complained. “I am sure the Viet Cong will come out of this war with great pride in the fact that 

they confronted American machines and survived. I came out of that plane with a strong 

sense of unease.” ... 

After the Communist Tet offensive of 1968, Ellsberg began to despair of U.S. success in the war and to review more introspectively his own involvement in the previous 

planning.... 

What Ellsberg claims has been a U.S. callousness toward Vietnamese deaths and a 

preoccupation with lowering its own casualties to an acceptable level has been a recurrent 

theme of his criticism.... 

Ellsberg has helped fulfill his prophecy of mounting stress in the U.S. unless the war 

ends, a prophecy offered before the Senate Foreign Relations Committee last year. Said 

Ellsberg: “Personally, I have thought in the last couple of years of protest in this country 
100

Federal Trials and Great Debates in United States History

that it was still possible to exaggerate the threat to our society that this conflict posed for 

us. But I am afraid that we cannot go on like this, as seems likely, unless Congress soon 

commits us to total withdrawal, and survive as Americans. I think that what might be at 

stake if this involvement goes on is a change in our society as radical and ominous as could 

be brought about by our occupation by a foreign power. I would hate to see that.”

“The Advocates”: “Should the Government Drop the Charges against

Daniel Ellsberg?,” October 5, 197151

In October 1971, Boston public television station WGBH devoted an episode of its weekly debate program, “The Advocates,” to the question of whether Daniel Ellsberg’s prosecution for theft 

and espionage should be abandoned. University of Southern California law professor Howard 

Miller—along with his witnesses, former U.S. Senator Ernest Gruening, newspaper editor John 

Siegenthaler, and MIT professor Noam Chomsky—advocated Ellsberg’s exoneration, claiming 

that he had performed a valuable public service by leaking the Pentagon Papers. National Review publisher William Rusher and his witnesses, Leo Cherne of the Research Institute of America and former ambassador to Vietnam Elbridge Durbrow, argued that Ellsberg had harmed national security and that not to prosecute him would constitute a selective application of the law.

Miller: The Government is about to prosecute Daniel Ellsberg for returning a set 

of documents to those who own them, the people of the United States. Those 

prosecuting are the very people who support the policy that Ellsberg exposed as 

a fraud. In a kind of premature 1984, the lie is prosecuting the truth.... 

Rusher: A federal grand jury has indicted Daniel Ellsberg for violating the U.S. 

Criminal Code. If this happened to you or me, we would have to stand trial. 

But Ellsberg’s friends now argue that he should be exempt from prosecution 

because he acted with a political purpose in mind. Is this the kind of America 

we want? Should there be one law for Daniel Ellsberg and another for the rest 

of us? ... 

Miller: The question is often asked, What if others do what Daniel Ellsberg has 

done? The answer to that question is another question. What if they don’t? If 

at this moment another Vietnam were being planned secretly and deceitfully, 

wouldn’t we want another Daniel Ellsberg to tell us about it now? In fact, Daniel Ellsberg has breached no law. The law under which he was indicted requires 

that it result in injury to the United States. 

The disclosure has resulted in benefit to the United States. What Daniel Ellsberg did is commit the unforgivable sin. He breached the wall of secrecy between the Government and the people....

51. WGBH Media Library and Archives, http://openvault.wgbh.org/catalog/V_A47A093E99C04E7C99F4A7410D9DE4AE.
101

The Pentagon Papers in the Federal Courts

Gruening: Well, [Ellsberg] has exposed the deception, the betrayal of the elected 

public servants of their responsibility to the American people. He has exposed 

how the leading officials, starting with the President and all his surrounding 

advisors, lied the American people into this war with the countless deaths and 

wounded and all the other disastrous consequences. He has exposed how the 

Gulf of Tonkin Resolution was a completely spurious episode and how the 

Gulf of Tonkin Resolution had been drafted months before by an assistant Secretary of State before the Tonkin Gulf episode happened.

He has exposed how while Lyndon Johnson was campaigning for election in 

his own right and telling the American people that he would never send American boys to fight a ground war on the continent of Asia ... all the time he was 

planning to do this and escalating the war.... 

Rusher: Let us begin by conceding at once that Daniel Ellsberg is no ordinary 

criminal, that whether he is right or wrong about the Vietnam War, he sincerely believed he was right and that he committed the crimes in question with the 

best of political intentions. What you and I must consider is whether in those 

circumstances he should be completely immune from prosecution as Mr. Miller and his witnesses contend....

Ambassador Durbrow was formerly in 1957–61 Ambassador to Vietnam and 

then alternate U.S. Representative to NATO until 1967. He also served in the 

Foreign Service for six years in Moscow on three separate assignments. Ambassador Durbrow, just how great was this service that Daniel Ellsberg performed 

for the American people?

Durbrow: In my estimation, unfortunately, he did a great disservice to the American people.

Rusher: Why is that? ... 

Durbrow: Having been almost forty years in the diplomatic business, the confidentiality of your negotiations, your talks, your dealings with your foreign 

colleagues is vital and critical. We cannot carry on foreign relations without it. 

The fact that many things that our foreign colleagues have told us come out 

in these Pentagon Papers is going to make it more difficult and in some cases 

probably impossible for us to have meaningful confidential discussions with 

our allies, which some four or five countries have already formally protested the 

publication of these documents. Other countries have given oral protestations, 

either abroad in their respective counties or in Washington about the publication of these documents, thereby making it much more difficult for us to carry 

on our business in the protection of the United States.... 

Rusher: Has any damage been done to our security, sir?

Durbrow: Yes, in my estimation, a great deal of damage has been done. The documents give code names to some of our projects that are ongoing. The enemy 

learns this, he’s heard about this code project, he didn’t know what it was all 
102

Federal Trials and Great Debates in United States History

about, he gets a verbatim text and he starts running it through other sources 

and gets a much better picture and harmful to the United States. Actually, in 

the parts of the Pentagon Papers which were released, sixty documents from 

the State Department and thirty documents off and on, give a number of one 

or two, from the Pentagon did deal with ongoing U.S. diplomatic, intelligence 

and military negotiations today.

“The Ellsberg Affair,” November 13, 197152

A November 1971 profile of Daniel Ellsberg in the Saturday Review used Ellsberg’s own words 

to describe his motivation for releasing the Pentagon Papers. 

Ellsberg fits none of the conventional patterns of dissent; he is not a man of gestures, a 

burner of draft records, a self-immolator, not a marcher or a signer of petitions. He is, rather, a man who took it upon himself to commit the highest crime of all: breaking the rules 

of the club. He stole their secrets. That he should, as a consequence, become something of 

a national hero ... deserves some note.... 

What we do have is Ellsberg’s own account of his conversion, his gradual discovery 

that the war was based on “lies, deception, and secrecy,” and his decision that if the Pentagon study, of which he was one of the authors, were not published, the administration 

would find a pretext for escalating the war again. To his knowledge, he said, he was the 

only person to have read the entire study who had also had field experience in Vietnam.

The conversion was as gradual as it was absolute, and Ellsberg speaks of a time “when 

I walked through American society looking for a place to stand.” The problem was how 

to get leverage—to achieve something—not only in bringing the war to an end but in exposing the structure and practices that sustained it. For a year before the Pentagon Papers 

were published, Ellsberg, now a senior research associate in international studies at MIT, 

was writing and speaking about the war, trying to demonstrate that Vietnam had not been 

a hopeless quagmire or the result of poor intelligence, but the consequence of a series of 

deliberate Presidential decisions, going back to 1946, in which domestic political considerations—particularly the fear of being the President who “lost” Indochina to the Communists—overruled a series of pessimistic and “remarkably accurate” intelligence estimates of 

the prospects of American success.

Ellsberg’s conversion did not begin with the immorality of the war but with its futility and with the lies that were used in its defense.... 

It was the systematic deception, which started at the lowest echelons and ran through

the entire government structure from the platoon leader to the President of the United

52. Peter Schrag, Saturday Rev., vol. LIV, no. 46, Nov. 13, 1971, at 34–39.
103

The Pentagon Papers in the Federal Courts

States, that began to place the daily brutality in its ugliest light.... 

“I remember very well,” Ellsberg told a television interviewer, “thinking that this is a 

system I have spent fifteen years serving, in the Marine Corps, Defense Department, State 

Department, Vietnam, Rand Corporation, serving the President.... It’s a system that from 

top to bottom has come to act reflexively, automatically, to conceal murder for political 

convenience by lying.” He had said earlier, “All along, I was skeptical of this policy of 

deception, and yet I helped write some of those lies. I was well aware of them. I did not 

expose them.” ... 

In making the Pentagon Papers public, Ellsberg said later, he hoped to set an example 

for other defectors and that “a few other ex-officials would come clean.” But the act was 

also an effort to establish credibility with the people he was trying to reach. The students 

were always polite, there were no hecklers, but clearly there was also Ellsberg’s own unresolved sense of personal complicity: “When I first started facing such audiences and the 

person introducing me felt compelled to go down the whole list of my past associations, 

my heart would sink with each sentence.” If a man was willing to risk death for the nation 

in war, should he not also be willing to risk prison to stop a war he regarded as brutal and 

unjust? Ellsberg thought of himself as a war criminal.

“Why I did it! An interview with Daniel Ellsberg concerning government 

security, government hypocrisy, and the Pentagon Papers,” June 197353

In June 1973, as he awaited trial on theft and espionage charges, Daniel Ellsberg gave a detailed and wide-ranging interview to Reason magazine, in which he expounded upon his goals 

in leaking the Pentagon Papers, his thoughts on what the papers revealed about the conduct of 

the Vietnam War, and his fears of future limitations on freedom of the press in the United States.

Reason: What did you want to accomplish? What was your purpose in embarking 

on the activities that led to your dissemination of the Pentagon Papers?

Ellsberg: The only thing that I could personally hope to achieve by my own efforts was to make these documents available to the American public for them 

to read and to learn from. I couldn’t force them to read the documents—let 

alone to learn from and act on them—but I could hope to make it possible for 

them to read them as opposed to the situation where the studies were sitting in

my safe at the Rand Corporation. In that situation I was almost the only person

in the country authorized to study and derive lessons from them. The theory 

was that those lessons would be put to use by the Executive Branch. But what 

the Pentagon Papers told me when I read them was that the Executive Branch 

was determined not to learn lessons from its experience in Vietnam. While the

53. Manuel S. Klausner and Henry Hohenstein, Reason, vol. 5, no. 2, June 1973, at 5–18.
104

Federal Trials and Great Debates in United States History

United States Government had experienced a series of failures that called for a 

change in our policy, successive administrations had really seen our experience 

as a succession of adequate successes. Each President had managed to postpone 

the day when the country, and specifically when he, would have to acknowledge a mistake or defeat....The history in the Pentagon Papers told me that if 

others were to learn a different lesson it would have to be people outside the 

Executive Branch and they would have to have the physical capability to read 

the papers. So the papers had to leave my safe.... 

Reason: Did you also have a purpose in disclosing the Pentagon Papers of trying 

to show any detriment in the Government’s policy of classifying information?

Ellsberg: Yes. A very important secondary objective—second only to the objective of getting a change in our Vietnam policy—was the hope of changing 

the tolerance of Executive secrecy that had grown up over the last quarter of a 

century both in Congress and the courts and in the public at large....

Reason: What do you view as the major lies that the Pentagon Papers have disclosed in terms of American Presidents’ announcements about the war and our 

involvement in Indochina.... 

Ellsberg: I would say a major deception that runs right through five Administrations is the clear deceit that we were significantly, let alone essentially, concerned with freedom from foreign intervention for the Vietnamese people. I 

would say that to look at these papers you can only conclude that five Administrations were very clear in their mind that they believed foreign intervention—

by ourselves—was both essential and legitimate and was the cornerstone of our 

policy.... 

Reason: There are a number of American conservatives that deplore your conduct 

and Anthony Russo’s conduct in disclosing the contents of the Pentagon Papers to the American public. They feel this is an unpatriotic act that really was 

in defiance of American policy and you should be punished therefor—but at 

the same time there are many American conservatives who have applauded 

disclosures of confidential information and leaks in other situations such as the 

Otepka case. It was felt that the disclosure was one that would aid in the battle 

to cleanse the State Department of Communists. Could you comment on that?

Ellsberg: Well, that’s two special viewpoints I think, that don’t exhaust the points 

of view on this situation. To see our act as unpatriotic or against American policy is, I think, to identify the government with the Executive branch—indeed 

with the President—and to take not just the position, “my country right or 

wrong,” but, “my President right or wrong.” And that’s really a position that 

wipes out the distinctions between American democracy and monarchic or autocratic forms of government. To see our act as a clearly disobedient or disloyal 

one is still to equate loyalty with obedience to a single boss. And that wasn’t the 

founding theory of our American government. It’s certainly possible to see our 

act as a mistake or misguided somehow, but that judgment has to be made in 
105

The Pentagon Papers in the Federal Courts

the light of the rather complex obligations that any American should recognize 

toward the Constitution, towards several branches of government, towards his 

countryman, toward humane feelings. I think that it is hard to apply that more 

complicated test and conclude that we did the wrong thing.

Defendants’ motion to dismiss indictment in Pentagon Papers criminal 

case, May 1, 197354

On May 1, 1973, Daniel Ellsberg’s attorneys filed a motion in the U.S. District Court for the 

Central District of California to dismiss the criminal indictment against him and Anthony 

Russo, charging that the government had engaged in severe and persistent misconduct that made 

a fair trial impossible. Many of the improper actions, the defense alleged, originated in the 

Nixon White House and were directly connected to the Watergate scandal. Most damning were 

charges that E. Howard Hunt and G. Gordon Liddy, two members of the special White House 

investigative unit known as the “Plumbers,” had orchestrated a burglary of Ellsberg’s psychiatrist’s office in Los Angeles and that Nixon advisor John Ehrlichman had met with trial judge 

Matthew Byrne to discuss a possible appointment as director of the FBI. On May 11, Judge 

Byrne dismissed the case.

The defendants hereby move for a dismissal of the Indictment.

From the very beginning, this proceeding has been characterized by prosecutorial 

abuse extending all the way to the White House itself, which is unparalleled in the history of American jurisprudence. The result has been a prosecution which is a travesty on 

justice. Almost every rule intended to provide a fair trial for persons accused of crime has 

been flagrantly and arrogantly violated by the prosecution in the course of this two-year 

proceeding....

3. The Government engaged in unauthorized and illegal electronic overhearing of conversations of counsel and/or legal consultants for the defendants. The first disclosure 

of such surveillance to the court and defense counsel was delayed for almost three 

months from the time of the Court’s order for disclosure....

4. In May, 1972, Bernard Barker, one of the Watergate team and a close associate of [E. 

Howard] Hunt and [G. Gordon] Liddy, arranged and conducted an assault upon the 

defendant Ellsberg while he was at a public meeting in Washington DC in opposition to the Cambodian invasion. He was assisted by a number of Cuban emigrants, 

some of whom were later convicted of the Watergate burglary....

54. United States v. Anthony Russo and Daniel Ellsberg, Criminal File 9373 (C.D. Cal. May 1, 1973), motion 

available at Nat’l Archives & Records Admin., Record Grp. 21, Riverside, Cal.
106

Federal Trials and Great Debates in United States History

This unpleasant story has been climaxed by the disclosure, in the past few days, of 

events which occurred some time ago but of which the defendants learned as recently as 

last Friday (April 26), yesterday (April 30), and today.

On Friday, the defendants were advised by the court that two persons, while on the 

staff of the White House, may have burglarized the files of a psychiatrist treating defendant Ellsberg. It now appears that Mr. [John] Ehrlichman has known about the burglary 

for some time (we still do not know how long), but that instead of advising the police, 

and notifying this court, he contended himself with directing Hunt and Liddy not to do 

it again. We know further that the Hunt-Liddy investigation was the result of a decision 

made “directly out of the White House.” ...

But even this was not the end. Only yesterday we learned, not through the Court 

or the prosecution, but through a press report, “that about a month ago” the same Mr. 

Ehrlichman invited the Presiding Judge to visit the San Clemente White House to discuss 

with him “a proposed future assignment in government.” ...

Given the extraordinary interest the White House has shown in this case, we would, 

were we to use blunt language, characterize this as an attempt to offer a bribe to the 

court—an attempt made in the virtual presence of the President of the United States—

which was frustrated only because the Judge refused to listen to the offer....

To compel the defendants to complete this trial under these circumstances is an 

insult to the Constitution and to the integrity of this court. The trial is an abomination. 

The prosecution should never have been brought and it should not continue a day longer.

U.S. District Court for the Central District of California, dismissal of indictment in Pentagon Papers criminal case, May 11, 197355

On the 89th day of the trial of Daniel Ellsberg and Anthony Russo on federal charges of theft 

and espionage, Judge William Byrne of the U.S. District Court for the Central District of California dismissed all charges against the defendants and barred the government from retrying 

them. Byrne’s ruling was based on revelations of improper government conduct, including the

burglary of Ellsberg’s psychiatrist’s office by a special White House investigative unit known as 

the “Plumbers”—a unit that was implicated in the Watergate scandal a short time later.

The disclosures made by the Government demonstrate that governmental agencies have 

taken an unprecedented series of actions with respect to these defendants.

After the original indictment, at a time when the Government’s rights to investigate 

the defendants are narrowly circumscribed, White House officials established a special unit 

to investigate one of the defendants in this case.

55. Text of Ruling by Judge in Ellsberg Case, N.Y. Times, May 12, 1973, at 14.
107

The Pentagon Papers in the Federal Courts

The special unit apparently operated with the approval of the F.B.I., the agency officially charged with the investigation of this case.

We may have been given only a glimpse of what this special unit did regarding this 

case, but what we know is more than disquieting. The special unit came to Los Angeles and 

surveyed the vicinity of the offices of the psychiatrist of one of the defendants.

After reporting to a White House assistant and apparently receiving specific authorization, the special unit then planned and executed the break-in of the psychiatrist’s office 

in search of the records of one of the defendants.

From the information received, including the last document filed today, it is difficult to determine what, if anything, was obtained from the psychiatrist’s office by way of 

photographs.

The Central Intelligence Agency, presumably acting beyond its statutory authority, 

and at the request of the White House, had provided disguises, photographic equipment 

and other paraphernalia for covert operations.

The Government’s disclosure also revealed that the special unit requested and obtained from the C.I.A. two psychological profiles of one of the defendants.

Of more serious consequences is that the defendants and the court do not know the 

other activities in which the special unit may have been engaged and what has happened 

to the results of these endeavors.

They do not know whether other material gathered by the special unit was destroyed, 

and though I have inquired of the Government several times in this regard, no answer has 

been forthcoming....

Within the last 48 hours, after both sides had rested their case, the Government 

revealed interception by electronic surveillance of one or more conversations of defendant 

Ellsberg. The Government can only state and does only state that the interception or interceptions took place....

Of greatest significance is the fact that the Government does not know what has happened to the authorizations for the surveillance, nor what has happened to the tapes nor to 

the logs nor any other records pertaining to the overheard conversations.... 

There is no way the defendants or the court or, indeed, the Government itself can test 

what effect these interceptions may have had on the Government’s case here against either 

or both of the defendants....

Moreover, no investigation is likely to provide satisfactory answers where improper 

Government conduct has been shielded so long from public view and where the Government advises the court that pertinent files and records are missing or destroyed.

My duties and obligations relate to this case and what must be done to protect the 

right to a fair trial.
108

Federal Trials and Great Debates in United States History

The charges against these defendants raise serious factual and legal issues that I would 

certainly prefer to have litigated to completion....

However, while I would prefer to have them litigated, the conduct of the Government has placed the case in such a posture that it precludes the fair, dispassionate resolution of these issues by a jury....

Under all the circumstances, I believe that the defendants should not have to run 

the risk, present under existing authorities, that they might be tried before a different jury.

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....

I am of the opinion, in the present status of the case, that the only remedy available 

that would assure due process and a fair administration of justice is that this trial be terminated and the defendants’ motion for dismissal be granted and the jury discharged.

Aftermath of the Pentagon Papers Cases

President Richard Nixon, statement regarding Watergate, May 22, 197356

The Pentagon Papers episode had an important connection to the Watergate scandal that occurred shortly thereafter. It was President Nixon’s secret investigative unit—the “Plumbers,” 

created in the wake of Daniel Ellsberg’s leak—that was responsible for both the break-in of 

Ellsberg’s psychiatrist’s office and the later burglary of the Democratic Party headquarters at the 

Watergate complex. In a May 1973 statement, the President denied attempting to impede the 

Watergate investigation by steering it away from the White House, explaining that he had acted 

only to ensure that the investigation did not result in the exposure of highly sensitive national 

security operations conducted by either the Plumbers or the CIA.

On Sunday, June 13, 1971, The New York Times published the first installment of what 

came to be known as “the Pentagon papers.” Not until a few hours before publication did 

any responsible Government official know that they had been stolen. Most officials did

not know they existed. No senior official of the Government had read them or knew with 

certainty what they contained.

All the Government knew, at first, was that the papers comprised 47 volumes and 

some 7,000 pages, which had been taken from the most sensitive files of the Departments 

of State and Defense and the C.I.A., covering military and diplomatic moves in a war that

56. Text of a Statement by the President on Allegations Surrounding Watergate Inquiry, N.Y. Times, May 23, 

1973, at 28.
109

The Pentagon Papers in the Federal Courts

was still going on....

There was every reason to believe this was a security leak of unprecedented proportions....

Therefore during the week following the Pentagon papers publication, I approved

the creation of a special investigations unit within the White House—which later came to 

be known as the “plumbers.” This was a small group at the White House whose principal 

purpose was to stop security leaks and to investigate other sensitive security matters. I 

looked to John Ehrlichman for the supervision of this group....

At about the time the unit was created, Daniel Ellsberg was identified as the person 

who had given the Pentagon papers to The New York Times. I told [the head of the unit] 

Mr. Krogh that as a matter of first priority, the unit should find out all it could about Mr. 

Ellsberg’s associates and his motives. Because of the extreme gravity of the situation, and 

not then knowing what additional national secrets Mr. Ellsberg might disclose, I did impress upon Mr. Krogh the vital importance to the national security of his assignment. I did 

not authorize and had no knowledge of any illegal means to be used to achieve this goal.

However, because of the emphasis I put on the crucial importance of protecting the 

national security, I can understand how highly motivated individuals could have felt justified in engaging in specific activities that I would have disapproved had they been brought 

to my attention....

The work of the unit tapered off around the end of 1971. The nature of its work was 

such that it involved matters that, from a national security standpoint, were highly sensitive then and remain so today.

These intelligence activities had no connection with the break-in of the Democratic 

headquarters, or the aftermath.

I considered it my responsibility to see that the Watergate investigation did not impinge adversely upon the national security area....

It did seem to me possible that, because of the involvement of former C.I.A. personnel, and because of some of their apparent associations, the investigation could lead to 

the uncovering of covert C.I.A. operations totally unrelated to the Watergate break-in....

I wanted justice done with regard to Watergate; but ... I also had to be deeply concerned with insuring that neither the covert operations of the C.I.A. nor the operations of 

the special investigations unit should be compromised.... It was certainly not my intent, 

nor my wish, that the investigation of the Watergate break-in or of related acts be impeded 

in any way.

111

The Pentagon Papers in the Federal Courts

Bibliography

Archival and Unpublished Materials

 “The Advocates”: “Should the Government Drop the Charges against Daniel Ellsberg?,” WGBH Media Library and Archives (October 5, 1971), http://openvault.

wgbh.org/catalog/V_A47A093E99C04E7C99F4A7410D9DE4AE.

Famous Trials. Conversations Concerning the Daniel Ellsberg and the Pentagon 

Papers (June 22–30). https://famous-trials.com/legacyftrials/ellsberg/nixononpp.

html#Conversations_Concerning_the_Daniel.

Neil Sheehan papers; Harry A. Blackmun papers; Harold Leventhal papers; Gerhard 

Gesell papers; William O. Douglas papers, Library of Congress Manuscripts Division, Washington, D.C.

National Security Archive, George Washington University, http://www2.gwu.edu/~nsarchiv/NSAEBB/NSAEBB48/transcript.pdf; http://www2.gwu.edu/~nsarchiv/

NSAEBB/NSAEBB48/ehrlichman.pdf; http://www2.gwu.edu/~nsarchiv/NSAEBB/

NSAEBB48/mitchell.pdf.

New York Times Co. v. United States/United States v. Washington Post Co.; Case Nos. 1873, 

1885, case files; Record Group 267, National Archives and Records Administration, 

Washington, D.C. 

 “Nixon Tapes: ‘Fight All Out’ over Pentagon Papers” (Chuck Colson), YouTube, https://

www.youtube.com/watch?v=_9DhsmHGYzI.

United States v. New York Times Co.; Case No. 71 Civ. 2662, case files; Record Group 21, 

National Archives and Records Administration, New York, N.Y. 

United States v. Washington Post Co.; Case No. 71-1235 , case files; Record Group 21, 

National Archives and Records Administration, Washington, D.C. 

Transcript of CBS News Special Report. “The Pentagon Papers: A Conversation with Daniel Ellsberg” (June 23, 1971), Theodore F. Koop papers, University of Iowa Libraries, 

Iowa City, Iowa.

United States v. Anthony Russo and Daniel Ellsberg; Criminal File 9373, case files; Record 

Group 21, National Archives and Records Administration, Riverside, California.

Published Primary Sources

Buckley, William F. “Mr. Blackmun’s Dissent,” Universal Press Syndicate (July 6, 1971).

Congressional Record. 117 Cong. Rec. 20284 (Jun. 16, 1971); 20634 (Jun. 17, 1971); 

21108 (Jun. 18, 1971).

“Disclosure and Security,” (Editorial), Wall Street Journal (July 2, 1971): 6.

“Ellsberg: The Battle Over the Right to Know,” Time (July 5, 1971).
112

Federal Trials and Great Debates in United States History

“Freedom and Restraint” (Editorial), Wall Street Journal (June 23, 1971): 14.

Hobby, Oveta Culp. “A loss, not a gain,” Houston Post (July 4, 1971).

House of Representatives, 92nd Congress, 1st Session. U.S. Government Information 

Policies and Practices—The Pentagon Papers: Hearings before a Subcommittee of the 

Committee on Government Operations (1971): 9–14.

Klausner, Manuel S. and Hohenstein, Henry. “Why I did it! An interview with Daniel 

Ellsberg concerning government security, government hypocrisy, and the Pentagon 

Papers,” Reason, vol. 5, no. 2 (June 1973) 5–18.

Kraft, Joseph. “Unlike the Others, He Was ‘A Man Driven,’” New York Times (July 4, 

1971): 1.

Letters to the Editor. New York Times (July 14, 1971): 34; (July 18, 1971): 12; (July 19, 

1971): 24.

 “Mr. Mitchell Should Go,” (Editorial), St. Louis Post-Dispatch (June 22, 1971): 24.

“Our Colleagues Err on War Secrets Issue,” (Editorial), Detroit News (June 27, 1971): 1.

Roberts, Chalmers M. “Documents Reveal U.S. Effort In ’54 to Delay Viet Election,” 

Washington Post (June 18, 1971): A1.

Schrag, Peter. “The Ellsberg Affair,” Saturday Review, vol. LIV, no. 46 (November 13, 

1971): 34–39.

Sheehan, Neil. “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. 

Involvement,” New York Times (June 13, 1971): 1.

Stone, I.F. “The Crisis Coming for a Free Press,” I.F. Stone’s Bi-Weekly, Vol. XIX, no. 14 

(July 12, 1971): 1–4.

“Text of Ruling by Judge in Ellsberg Case,” New York Times (May 12, 1973): 14.

“Text of a Statement by the President on Allegations Surrounding Watergate Inquiry,” 

New York Times (May 23, 1973): 28.

U.S. Department of Defense. Report of the Office of the Secretary of Defense Vietnam 

Task Force [Pentagon Papers]. Available online at National Archives: https://www.

archives.gov/research/pentagon-papers.

“The Vietnam Documents” (Editorial), New York Times (June 16, 1971): 44.

Secondary Sources

Abrams, Floyd. “The Pentagon Papers after Four Decades.” Wake Forest Journal of Law 

and Policy 1, no. 1 (April 2011): 7–19.

Barron, Jerome A. “The Pentagon Papers Case and the Wikileaks Controversy.” Wake 

Forest Journal of Law and Policy 1, no. 1 (April 2011): 49–74.

Ellsberg, Daniel. Secrets: A Memoir of Vietnam and the Pentagon Papers. New York: Penguin Books, 2003.
113

The Pentagon Papers in the Federal Courts

Prados, John, and Margaret Pratt Porter, eds. Inside the Pentagon Papers. Lawrence: University Press of Kansas, 2004.

Rudenstine, David. The Day the Presses Stopped: A History of the Pentagon Papers Case. 

Berkeley: University of California Press, 1996.

Rudenstine, David. “The Pentagon Papers Case: Recovering its Meaning Twenty Years 

Later.” Cardozo Law Review 12, no. 6 (June 1991): 1869–1913.

Sheehan, Neil, et al. The Pentagon Papers: The Secret History of the Vietnam War. New 

York: Racehorse Publishing, 2017.

Sheinkin, Steve. Most Dangerous: Daniel Ellsberg and the Secret History of the Vietnam 

War. New York: Roaring Brook Press, 2015.

Sims, John Cary. “Triangulating the Boundaries of Pentagon Papers.” William & Mary 

Bill of Rights Journal 2, no. 2 (Winter 1993): 341–453.

Ungar, Sanford J. The Papers and the Papers: An Account of the Legal and Political Battle 

over the Pentagon Papers. New York: Columbia University Press, 1989.
Federal Trials and Great Debates in U.S. History

Since 2006, the Federal Judicial Center, in partnership with the American Bar Association 

Division for Public Education, has hosted Federal Trials and Great Debates, an annual 

summer institute for teachers of history, law, and government. Participants from across 

the country come to Washington, D.C., each June to meet with federal judges, scholars, 

and curriculum experts to examine the history of the federal judiciary and to study three 

historic cases in the federal trial courts. The materials on these cases, while designed for 

teachers, are valuable resources for all seeking to learn more about the role the federal judiciary has played in our nation’s history.

The Pentagon Papers in the Federal Courts, Jake Kobrick, May 2019

United States v. Guiteau: Assassination and Insanity in Gilded Age America,

Winston Bowman, 2019

U.S. v. Clay: Muhammad Ali’s Fight Against the Vietnam Draft, Winston

Bowman, 2018

The Flag Salute Cases, Winston Bowman, 2017

The Rosenberg Trial, Jake Kobrick, 2013

Olmstead v. United States: The Constitutional Challenges of Prohibition Enforcement, Richard F. Hamm, 2010

The Debs Case: Labor, Capital, and the Federal Courts of the 1890s, David

Ray Papke, 2008

The Chicago Seven: 1960s Radicalism in the Federal Courts, Bruce A. Ragsdale, 2008

The Sedition Act Trials, Bruce A. Ragsdale, 2005

Ex parte Merryman and Debates on Civil Liberties During the Civil War,

Bruce A. Ragsdale, 2007

The Aaron Burr Treason Trial, Charles F. Hobson, 2006

Chew Heong v. United States: Chinese Exclusion and the Federal Courts,

Lucy Salyer, 2006

The Trial of Susan B. Anthony, Ann D. Gordon, 2005

Bush v. Orleans Parish School Board and the Desegregation of New Orleans

Schools, Davison M. Douglas, 2005

Amistad: The Federal Courts and the Challenge to Slavery, Bruce A. Ragsdale,

2002
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair 

Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of Indi-ana 

Judge Duane Benton, U.S. Court of Appeals for the Eighth Circuit 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Chief Judge Barbara J. Houser, U.S. Bankruptcy Court for the Northern District of Texas 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Judge George Z. Singal, U.S. District Court for the District of Maine

Judge David S. Tatel, U.S. Court of Appeals for the District of Columbia Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director

John S. Cooke 

Deputy Director

Clara Altman 

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States. 

By statute, the Chief Justice of the United States chairs the Center’s Board, which also 

includes the director of the Administrative Office of the U.S. Courts and seven judges elected 

by the Judicial Conference. 

The organization of the Center reflects its primary statutory mandates. The Education 

Division plans and produces education and training for judges and court staff, including 

in-person programs, video programs, publications, curriculum packages for in-district training, and Web-based programs and resources. The Research Division examines and evaluates 

current and alternative federal court practices and policies. This research assists Judicial 

Conference committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational programs. The 

Federal Judicial History Office helps courts and others study and preserve federal judicial 

history. The International Judicial Relations Office provides information to judicial and legal 

officials from foreign countries and informs federal judicial personnel of developments in 

international law and other court systems that may affect their work. Two units of the Director’s Office—the Information Technology Office and the Editorial & Information Services 

Office—support Center missions through technology, editorial and design assistance, and 

organization and dissemination of Center resources.