The Supreme Court had agreed on June 25 to review decisions by the lower courts. Judge Gurfein of the New York court had in the first instance issued the temporary restraining order while he reviewed an appeal by the government for an injunction to block publication. But he then denied the government’s appeal for an extension of his temporary restraining order. In doing so, in what was a landmark guideline for the judiciary, he stated: “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.”
To overturn Judge Gurfein’s ruling, the government went to the Court of Appeals.
At the Times, while this struggle was in progress in the courts, we had become progressively uneasy about losing our competitive edge on the story. Eager to promote the widest possible circulation of the Papers, Ellsberg had made available portions to the Washington Post and subsequently to other newspapers including the Christian Science Monitor and the Chicago Sun-Times. Competitively, the Washington Post had earlier been reduced to the competitive journalistic humiliation of simply rewriting and quoting the first installments published in the Times. Then, on a telephone tip as to the source of the Papers, Ben Bagdikan, the national editor, flew to Boston on June 16, met with Ellsberg, and returned with more than four thousand pages of classified Pentagon documents in a cardboard box.
Before being enjoined by the Federal District Court early on June 19, the Post went to press with its first article on the night of June 18. The Post published in defiance of government warnings after Katherine Graham, the publisher, told Ben Bradlee, the executive editor: “Okay, I say let’s go. Let’s publish.”
The Supreme Court agreed to intervene after the Court of Appeals in New York ruled in favor of the government. There was joy on June 30 at the Times when the Supreme Court decided in favor of the newspapers by a 6–3 vote, allowing our publication of the remaining four installments. The Supreme Court decision was a resounding First Amendment victory for the press. Justice Hugo Black commented that the Times and the Washington Post should be commended “for serving the purpose that the Founding Fathers saw so clearly.” But it was not an absolute ruling in the sense that there might never be a legal exercise of prior restraint. The Court might so act if it was shown, as Judge Potter Stewart held, that there was likely “direct, immediate, and irreparable damage to our nation or its people.” This formulation would later become a critical ruling when many government prosecutors sought to compel reporters to reveal their sources in reporting on controversial national security issues. The Stewart reservation was not seen as applicable to the publication of the Pentagon Papers. In an Op-Ed article written for the Washington Post in 1989, Erwin N. Griswald, who as solicitor general argued the case for the government, said: “I have never seen any trace of a threat to the national security from the publication” or “even seen it suggested that there was such an actual threat.” He termed the case against the Times and the Post a “mirage.”
In his book Speaking Freely, Floyd Abrams quotes Charles Nesson, a Harvard Law School professor, in an assessment common to most historians of the period, as concluding that publication of the Pentagon Papers “lent credibility to and finally crystallized the growing consensus that the Vietnam War was wrong and legitimized the radical critique of the war.” A postscript was added years later by Cyrus Vance during his Senate confirmation hearings as secretary of state in the Carter administration. Vance, who served under McNamara as a deputy secretary of defense, noted that the impact on public opinion had been such that the publication of the Pentagon Papers shortened the American War in Vietnam.
The 1972 Pulitzer Prize for Public Service went to the Times for its publication of the Pentagon Papers. While the Times was widely viewed as deserving of the prize, the award process itself was fraught with controversy and became a factor in the revision of the Pulitzer Prize process. The procedure at the time of the Pentagon Pagers award required a recommendation by a jury to an Advisory Board, which in turn recommended awards for final decision to Columbia University’s Board of Trustees. In the instance of the Pentagon Papers the jury for Public Service recommended that a joint award be made to the Times and to Neil Sheehan, stating: “It is fortuitous that the Pulitzer Prizes can recognize the accomplishments of both the newspaper and of a persistent, courageous reporter, and thus affirm to the American people that the press continues its devotion to the right to know, a basic bulwark in our democratic society.” The Advisory Board, made up mainly of editors and academics, split and set aside the bid by Ben Bradlee for equal citations to the Times and the Post and also the jury recommendation that a joint award go to Sheehan, which the board put aside as “a complicating factor.” Unanimously, the board then referred its award to the Board of Trustees with a simple citation which said: “The New York Times for the publication of the Pentagon Papers.” The twenty-two-member Trustee Board voted down the recommendation, largely because many members had held that awards should not be given for “illegal acts.” The dissenting members put the Pentagon Papers story into that category because they contended that Ellsberg’s copying of the classified Pentagon Papers and his passing of the document to the Times constituted an illegal act. Columbia’s president, William J. McGill, persuaded the Trustee Board to reconsider, and it finally gave qualified approval to the award to the Times. In 1975, as a consequence of the internal dispute over the Pentagon Papers award and similar controversies, the Trustee Board decided to delegate its responsibilities to the Advisory Board (later renamed the Pulitzer Prize Board), which then became a completely independent entity with its own endowment. The president of the university, by virtue of his office, continued as a voting member of the Pulitzer Prize Board to represent the interests of the university.
Like many members of the staff of the Times, I was bitterly disappointed by the decision of the board to put aside the recommendation that a joint award be made to Neil Sheehan. As in the case of Harrison Salisbury’s venture into North Vietnam, there was failure to recognize the critical importance of enterprise by the individual reporter.
It should be noted that members of the nineteen-member Pulitzer Prize Board in general serve for no more than nine years, and this rotation results in changes of attitudes and policies, something I can testify to out of personal experience. When I retired in 1987 as managing editor of the Times as required at the age of sixty-five, I was appointed director of Editorial Development for the thirty-two regional newspapers of the company. When I retired from that post in 1992, I was appointed administrator of the Pulitzer Prizes by the Pulitzer Prize Board and served in that capacity until 2002. During those years, I can testify that the board in its private deliberations placed great emphasis on making awards for individual enterprise and achievement.
Publication of the Pentagon Papers was less of a rewarding experience for Daniel Ellsberg than for us at the Times, although eventually he would become something of a folk hero in the antiwar movement. On June 28, only two days before the Supreme Court set aside government injunctions on publication of the Papers, accused of theft, conspiracy, and espionage, Ellsberg surrendered to the U.S. Attorney’s Office in Boston, knowing that if he was convicted he might spend the rest of his life in prison. He had been on the run, dodging the FBI, for sixteen days. Employing the FBI, President Nixon had moved strongly against Ellsberg on the urging of Henry Kissinger. In his memoir The White House Years, Kissinger wrote he reacted so strongly against the publication of the Pentagon Papers because he thought it might disrupt his forthcoming trip to Peking for negotiations to set up the Nixon visit. “Peking might conclude our government was too unsteady, too harassed, and too insecure to be a useful partner,” Kissinger wrote. “The massive hemorrhage of state secrets was bound to raise doubts about the reliability of our political system.” In fact, Kissinger contradicted what Premier Zhou Enlai told me when I met him with other journalists even as the premier w
as awaiting Kissinger’s arrival in Peking. Zhou said that publication by the Times of the Papers was “not only in the interests of the United States, but of the whole world.” He also perceived quite accurately that publication would help end the Vietnam War.
Ellsberg went to trial together with his collaborator, Anthony Russo, in the spring of 1973 in the Federal District Court on twelve felony counts posing the possibility that he could be sentenced to 115 years in prison if convicted on all charges. Chester Ronning, then retired from the Canadian foreign service, testified at the trial in March as a witness for the defense. He was summoned because government documents pertaining to his two missions to Hanoi to arrange peace negotiations had been published in the Pentagon Papers. Asked by Leonard Boudin, a defense attorney, if the leak of information by the government prior to his second visit to Hanoi in 1966 was one of the “principal factors” leading to the failure of his mission, Ronning replied: “It was not the principal factor, but it was a factor. The principal factor was the United States proposal to Hanoi.” Ronning was referring to American insistence that Hanoi terminate aid to its Vietcong allies in the South as a precondition for ending the bombing of North Vietnam. He testified that the publication of the Pentagon Papers in 1971 disclosing details of his mission had no effect on his mission because his contacts with Hanoi had ended. Describing Ronning’s appearance at the trial, correspondent Martin Arnold reported in the New York Times: “He was perhaps the most assured and relaxed witness to appear so far.”
The Ellsberg case was thrown out of court on May 11, 1973, when the presiding judge dismissed the charges on grounds of government misconduct after learning that agents employed by the White House, known as the “Plumbers,” had in September 1971 broken into the office of Dr. Lewis Fielding, Ellsberg’s psychiatrist, seeking information about his mental state. The burglary of Dr. Fielding’s office eventually would be shown to have a bearing on the Watergate scandal and the resignation of Richard Nixon from the presidency.
In the Watergate affair, on June 17, 1972, five men were arrested by police as they sought to break into offices of the Democratic National Committee Headquarters in the Watergate apartment complex in Washington, D.C., for the purpose of securing a wiretap. All of the burglars, known among themselves as the “Plumbers,” were connected directly or indirectly with the Committee to Reelect the President (CREEP). Among those indicted was E. Howard Hunt, who was involved in the Fielding break-in and the planner of the subsequent Watergate break-in. The Nixon administration’s assumption that presidential executive power superseded conventional legal codes, implicit in the Fielding break-in, was what encouraged the similar burglary at the Watergate. That burglary led to the damning investigations, notably by the Washington Post, which led to the conviction of those responsible for the Watergate break-in and in the end compelled the resignation of Richard Nixon from the presidency on August 9, 1974. The Watergate link to the Ellsberg case was revealed in detail by Egil Krogh, a practicing lawyer, who was deputy counsel to President Nixon, in an Op-Ed article published in the New York Times on June 30, 2007. Krogh wrote:
The Watergate break-in, described by Ron Ziegler, then the White House press secretary, as a “third-rate burglary,” passes its 35th anniversary this month. The common public perception is that Watergate was the principal cause of President Nixon’s downfall. In fact, the seminal cause was a first-rate criminal conspiracy and break-in almost ten months earlier that led inexorably to Watergate and its subsequent cover-up. In early August 1971, I attended a secret meeting in Room 16, a hideaway office in the basement of the Old Executive Office Building, across the street from the White House. Huddled around the table were G. Gordon Liddy, a former FBI agent; E. Howard Hunt, a former CIA agent; and David R. Young Jr., a member of the National Security Council staff. Two months earlier, the New York Times had published the classified Pentagon Papers, which had been provided by Daniel Ellsberg. President Nixon had told me that he viewed the leak as a matter of critical importance to national security. He ordered me and the others, a group that would come to be called the “Plumbers,” to find out how the leak had happened and to keep it from happening again. Mr. Hunt urged us to carry out a “covert operation” to get a “mother lode” of information about Mr. Ellsberg’s mental state, to discredit him, by breaking into the office of his psychiatrist, Dr. Lewis Fielding. Mr. Liddy told us that the FBI had frequently carried out such covert operations—euphemism for burglaries—in national security operations, that he had even done some himself. I listened intently. At no time did I or anyone else ever question whether the operation was necessary, legal or moral. Convinced that we were responding legitimately to a national security crisis, we focused instead on the operational details— who would do what, when and where. Mr. Young and I sent a memo to John Ehrlichman, assistant to the President, recommending that “a covert operation be undertaken to examine all of the medical files still held by Ellsberg’s psychiatrist.” Mr. Ehrlichman approved the plan, noting in longhand on the memo, “if done under your assurance that it is not traceable.” On Sept. 3, 1971, the burglars broke into Dr. Fielding’s Beverly Hills office to photograph the files, but found nothing related to Mr. Ellsberg.
In May 1973 Krogh submitted an affidavit to the presiding judge at the Ellsberg trial in which he confessed to his role and the involvement of Hunt and Liddy in the Fielding break-in. He then resigned as undersecretary of transportation. Krogh pleaded guilty in November 1973 to criminal conspiracy in depriving Dr. Fielding of his civil rights, specifically his constitutional right to be free from an unwarranted search. Krogh, who was not involved in the Watergate break-in, was sentenced to two to six years in prison, of which he served four and a half months. Krogh’s May 1973 affidavit and confession served to end Daniel Ellsberg’s two-year nightmare of fear that he might spend the rest of his life in prison.
37
THE TRIAL
I was in the newsroom of the Times on September 21, 1971, three months after leaving Peking, when Jim Greenfield, our foreign editor, pointed out to me a Reuters dispatch from the Chinese capital. The October 1 National Day parade, which had been held every year since the founding of the People’s Republic, had been canceled. All civil and military flights had been suspended without explanation from September 13 to 15. Cancellation of the parade meant there would be no lineup of the Politburo on the Tiananmen reviewing stand, the order of which would reveal any reshuffle of the leadership. Speculation all over the world centered on the health of Mao Zedong, intensified by a French Radio report that he was ill or dead.
One hour before the Times was to go to press with a front-page story reporting the speculation, I got through by telephone to the Information Department of the Foreign Ministry in Peking. Ji Mingzhong, my friendly overseer in Peking, who answered, was startled out of his customary imperturbability by the call, since there were no regular telephone connections between New York and Peking. When I asked him to confirm or deny the reports concerning Mao, there was a long silence before Ma Yuzhen, his superior, came on the line and said: “We usually do not answer questions on the telephone, but this is an exceptional case. The pernicious rumors about Chairman Mao Zedong are untrue. He is in very good health.” The Times carried Ma’s statement in the first edition, but we still did not know the nature of the crisis in China, and rumors continued to abound as to the health, whereabouts, and status of both Mao and Lin Biao, his designated successor. Lin Biao had earlier disappeared from public view, as did his four top generals: Huang Yongsheng, chief of the General Staff; Wu Faxian, the air force commander; Li Zuopeng, the navy political commissar; and Qiu Huizuo, chief of logistics for the armed forces.
The mystery deepened on September 30 when Tass, the Soviet press agency, announced that a Chinese Communist jet had violated the air space over the People’s Republic of Mongolia on the night of September 12–13 and crashed in the mountains. Nine badly burned bodies were found in the wreckage of the plane, which had been bound for the
Soviet Union. It would be almost a year before mention was made again in the Chinese press of Lin Biao’s name and then only in conjunction with his denunciation and the revelation that he, his wife, Ye Qun, and his son, Lin Liguo, were aboard the crashed aircraft.
All of the circumstances preceding their flight on the night of September 12–13 have not yet, as late as the year 2009, been officially disclosed. The Chinese leadership has not been willing to reveal every detail. What has been gleaned from Chinese government archives is the official allegation that Lin Biao’s son, an air force officer, having become convinced that the Maoists were planning the downfall of his father, gathered other officers into a group, which called itself the “Joint Fleet,” with the intention of assassinating Mao Zedong. Lin Liguo was also said to have planned to kidnap Lin Biao’s four senior generals and take them together with his parents to Guangzhou, where a rival regime would be set up to challenge the Maoists. When the plot was uncovered, Lin Liguo was said to have persuaded his parents, who were staying at Beidaihe, a coastal vacation resort not far from Peking, to flee with him and other conspirators to the Soviet Union. The Lin family boarded a Trident jet at an airport near Beidaihe. Aware of their flight, Zhou Enlai was said to have asked Mao if he should have the plane shot down. Mao is reputed to have shrugged off the suggestion with the comment: “Rain has to fall, girls have to marry, these things are immutable, let them go.” The Trident jet commandeered hastily by Lin Liguo apparently did not have sufficient fuel and crashed in the Mongolian mountains.
It remains a mystery as to whether Lin Biao himself was involved in his son’s alleged plot. Lin’s four top generals, who disappeared after the plane crash, apparently were not involved. Nevertheless, they were dismissed by Mao on September 24 as members of what he characterized as a treacherous faction.
On the Front Lines of the Cold War Page 48
