Pentagon Papers

by Neil Sheehan

  Chief Justice Burger:

  Q. I thought The New York Times was required to and did give you a list of what they had.

  A. They prepared an inventory, but from it, it is not possible to tell whether they are the same papers that we have. Part of the problem here is that a great mass of this material is not included in the 47 volumes. It is background material, earlier drafts of some papers which are materially different from what is included in the 47 volumes, and as a result we cannot tell from the inventory what is included. For example, one of the items already published, which has caused a certain amount of controversy publicly and internationally, is a telegram to the Canadian Government. That is not in the 47 volumes and is not referred to in the 47 volumes. Where they got it, how they got it, what it is, I do not know. But in this supplemental memorandum, it is stated under my signature that the petitioner specifies in addition to the foregoing any information relating to the following, and then there are listed 13 items. Frankly I regard that as much too broad.

  Therefore, I am saying here that we rely with respect to his factual question only on the items specified in the supplemental appendix filed in the Second Circuit and on such additional items as are covered in my closed brief in this case.

  Justice White:

  Q. Mr. Solicitor General, does your closed brief cover all of the items on the special appendix and any that you think should be added to it?

  A. No, Mr. Justice, it does not refer to all of them. What I tried to do in my closed brief, I spent all of yesterday afternoon in constant successive conversations with the individuals from the State Department, the Defense Department, the National Security Agency, and I said, “Look, tell me what are the worst, tell me what are the things that really make trouble.” They told me and I made longhand notes of what they told me. From that I prepared the closed brief.

  Q. Well, Mr. Solicitor General, if we disagreed with you on those that you have covered, the remainder of the items need not be looked at?

  A. Mr. Justice, I think that the odds are strong that that is an accurate statement. I must say that I have not examined every one of the remainder of the items.

  Q. Are you making an argument that even if those 10 that you have covered do not move us very far that nevertheless the cumulative impact of all of the others might tip the scale?

  A. And that there ought to be an opportunity for a full and free judicial consideration of each of the items covered in the supplemental appendix. It is perfectly true that there was a trial before Judge Gesell in the District Court of the United States. I referred to it in my closed brief as “hastily conducted” and have said that there was no trace of criticism in that. Judge Gesell started the trial at 8 o’clock last Monday morning, and was under orders from the Court of Appeals to have his decision made by 5 P.M., and there are 47 volumes of material, and millions of words. There are people in various agencies of the Government who have to be consulted, and Mr. Glendon quite appropriately conducted cross examination which took time. Much of the material had to be presented by affidavits, and there simply has not been a full careful consideration of this material. To the best of my knowledge, based on what was told me yesterday afternoon by the concerned persons, the 10 items in my closed brief are the ones on which we most rely, but I have not seen a great many of the other items in the special appendix simply for sheer lack of time.

  Whitney North Seymour, United States Attorney:

  Q. What was the length of the trial before Judge Gurfein in New York?

  A. Mr. Seymour?

  A. The in camera proceedings, your honor, were approximately four hours, including cross examination and argument.

  Justice Harlan:

  Q. What was the length of the hearing in the Court of Appeals for the Second Circuit?

  A. The total argument there, public and in camera, was just over three hours. The in camera portion I would guess was about an hour.

  Q. Decisions were rendered in the New York case by the District Court within two days afterwards.

  A. Within less than 24 hours after, your honor. The hearing finally finished at 10:45 P.M., on Friday night. Decision was rendered at 2:25 P.M., Saturday afternoon.

  Q. What was the time interval in the decision by the Court of Appeals?

  A. I believe it went one full day, that is, the decision was rendered late on the day of the 23d. The argument was finished shortly after five on the 22d.

  Q. And in the District of Columbia proceedings, of course you do not know, but perhaps the Solicitor General does.

  A. The trial in the District of Columbia occurred between 8 A.M. and 5 P.M., including the decision last Monday. I participated in the oral argument in the Court of Appeals, and it occupied two hours and a half, two hours and 45 minutes. It started at about 2:15 and was over I think just before 5.

  That is the entire amount of judicial time which has been devoted to millions of words.

  Justice White:

  Q. Mr. Solicitor General, I don’t want to bring in a red herring in this case, or what might be, but do you also say that the 10 items you have talked about fully justify the classification that has been given them and which still remains on them?

  A. Mr. Justice, I am not sure whether this case turns on classification.

  Justice White:

  Q. I agree it probably does not.

  A. No judicial proceeding has been brought under the Freedom of Information Act by either newspaper. There is provision there for starting a proceeding in court in case materials are wrongly determined. No judicial determination has been made that any classification was arbitrary or capricious. There is a complication here which people who live with become familiar with, which is that any compilation takes the classification of the highest classified item.

  Justice White:

  Q. I understand that, but on those 10 documents I won’t press you any more. You think it perhaps need not be answered in this case, and is perhaps irrelevant, is that correct?

  A. I think it need not be answered, but my position would be that as to those 10 items, it is more than 10 documents, as to those 10 items, that they are properly classified “Top Secret.” One of the items, I should make plain, is four volumes of the 47 volumes, four related volumes, all dealing with one specific subject, the broaching of which to the entire world at this time would be of extraordinary seriousness to the security of the United States. As I say, that is covered in my closed brief, and I am not free to say more about it.

  Justice Stewart:

  Q. As I understand it, Mr. Solicitor General, and you tell me, please, if I misunderstand it, your case does not really depend upon the classification of this material, whether it is classified or how it is classified. In other words, if The New York Times and The Washington Post had this material as a result of the indiscretion or irresponsibility of an Under Secretary of Defense who took it upon himself to declassify all of this material and give it to the paper, you would still be here.

  A. I would still be here. It will be one string off my bow.

  Q. I did not understand it was a real string on your bow. That is why I am asking you the question.

  A. Maybe it is not, but there are those who think it is, and I must be careful not to concede away in this court grounds which some responsible officers of the Government think are important.

  Q. Secondly, I understand, and tell me if I am wrong again, that your case really does not depend upon any assertion of property rights, by analogy to the copyright law. Your case would be the same if The New York Times had acquired this information by sending one of its employees to steal it, as it would if it had been presented to The New York Times on a silver platter by an agent of the Government. Am I correct?

  A. Yes, Mr. Justice, but I don’t think that literary property is wholly irrelevant here. But my case does not depend upon it.

  Q. Your case depends upon the claim, as I understand it, that the disclosure of this information would result in an immediate grave threat to
the security of the United States of America.

  A. Yes, Mr. Justice.

  Q. However it was acquired, and however it was classified.

  A. Yes, Mr. Justice, but I think the fact that it was obviously acquired improperly is not irrelevant in the consideration of that question. I repeat, obviously acquired improperly.

  Justice Brennan:

  Q. May I ask, Mr. Solicitor General, am I correct that the injunction so far granted against The Times and The Post have not stopped other newspapers from publishing materials based on this study or kindred paper?

  A. It is my understanding, Mr. Justice, though I have not had an opportunity to read everything that has been published in other newspapers, it my understanding that except with respect to the items in The New York Times, The Washington Post and The Boston Globe, there has not been published anything else which is not covered by material already published either in this series, or elsewhere. It would appear to us that other papers sought to get into the act, and they have assigned their writers to write what they can, but we have not been able to find new disclosures of previously unpublished material in these other articles.

  Q. Then are you suggesting that these other newspapers do not in fact have either this study or access to the study or parts of it?

  A. Mr. Justice, I do not know. I have no information whatever.

  Q. But you are not telling us that they do not.

  A. No.

  Q. There is the possibility that they do have either the study, the same thing The Post and Times have.

  A. There is the possibility that anybody has it.

  Q. But if that were the fact, I have always thought the rule was that equity has to be rather careful not to issue ineffective injunctions. Isn’t that a factor to be considered in these cases?

  A. No, I appreciate that. I am trying to say that on the basis of the information now known, this is not that situation. I repeat, I have not read these other articles. I am advised by people who have that they do not contain new disclosures, that they are—it has now become fashionable and popular, and you are not a good newspaper unless you have got some of this stuff, and they have put out articles with all kinds of window-dressing, probably very well written, but not containing new disclosures. I am not able to testify to that, and I cannot point to anything in the record which supports that. Certainly we are concerned about the problem of the effectiveness of any order which might be issued here.

  Q. I gather you do agree that the ordinary equitable principle is not to issue useless injunctions, is it not?

  A. Not to issue a useless injunction, and it is our position that there is nothing in this record or known outside the record which would indicate that this injunction would be useless.

  Justice Blackmun:

  Q. Mr. Solicitor General, one detail in that connection. Is there anything in the record, or any intimation anywhere, that the possession by the other newspapers is attributable to The New York Times or to The Washington Post?

  A. No, Mr. Justice. We do not know what they have or how they got it. That is equally true with The New York Times and The Washington Post.

  Justice Blackmun:

  Q. Have either of these newspapers denied it?

  A. Denied that—

  Q. That the possession on the part of the other newspapers is not attributable to them?

  A. I don’t know. I don’t believe that has been an issue in The Washington Post case. Mr. Seymour advises me there was nothing like that in The New York Times case.

  Q. Mr. Solicitor General, in terms of equity on an injunction, however, to the extent anything has been published and has already been revealed, the United States is not seeking an injunction against further publication of that particular item.

  A. No, Mr. Justice, I think at that point we would agree that it becomes futile. It is useless.

  Q. Would that mean, Mr. Solicitor General, that if the Government were to prevail here, and that at some time some document within the scope of the injunction that the Government got was published in some other newspaper, that then either The Times or The Post could run it and to that extent then get the injunction modified?

  A. I would think so, Mr. Justice.

  Q. But that is the only thing they could do, is that it?

  A. I would think so, yes. I may say that it was stated in both lower courts, in New York by Mr. Seymour and here by me, that the President last January directed a complete review of classification of all materials. Several Secretaries of State, Defense, and the Chairman of the Joint Chiefs of Staff authorized us then to say that they are prepared to appoint immediately a joint task force to conduct an exhaustive declassification study of the 47 volumes, that they will conduct the study on an expedited basis, and will complete it within any reasonable time that the court may choose. They suggest a minimum of 15 days. Upon completion of the study, the Government will withdraw its objection to the publication of any documents which it has found no longer are relevant to the national security.

  Justice Brennan:

  Q. Mr. Solicitor General, is the United States pressing separately your request of your cause of action for the return of the materials, wholly aside from injunction against publication?

  A. It is not involved in this case in this court at this time.

  Q. It is not?

  A. No.

  Q. But is the Government trying to get these materials back from The Times or The Post?

  A. I can certainly say the Government would like to get them back.

  Q. That was not my question. My question is is the Government attempting to?

  A. The Government is not at this time seeking an order for their return.

  Q. I thought that was part of your lawsuit, part of your request for relief.

  A. I believe it was, but we did not appeal with respect to that, nor is it covered in our petition for certiorari. Is that not right?

  Q. That is correct.

  Justice Marshall:

  Q. Mr. Solicitor General, on this 45-day study, does that depend on how we rule in this case, or is the Government going to do it anyhow?

  A. Mr. Justice, I will urge the Government to do it anyhow.

  Q. Well, are they?

  A. First, if this Court does not allow any injunction, it will be futile, because the material will be published, and there will not be any particular advantage to have a post mortem to say, “Oh, well, it was all right anyhow.”

  Q. Suppose the Court decides the other way. Will the study be made?

  A. The study is going to be made. I will do my best to see that the study is made, and I believe I have the full support of the entire Administration with respect to that.

  Q. Would it not be important without this case that the Government has a right to find out what is available to be published? Is that not part of their job?

  A. It is a massive operation. There is not the slightest doubt in my mind that there has been as long as I can remember, which is quite a while, massive overclassification of materials, and there has been much too slow review to provide declassification. The Government is in the process of taking steps to try to find a way to work that problem out.

  Q. But if this Court would by chance rule against you, then the Government would surely do it, wouldn’t they?

  A. If the Court should rule against us here, then it seems to me that it becomes moot with respect to these items. They can be published, and whether we classify them or declassify them is an academic question.

  Chief Justice Burger:

  Q. The Court would then have done the job for you, is that not correct?

  A. Yes, the Court will in effect have declassified the materials.

  Justice White:

  Q. I had thought the standard that you were operating under here in terms of a prior restraint was not necessarily equivalent to the standard that might be operative in a criminal proceeding. Whether or not a newspaper may be enjoined from publishing classified information does not necessarily de
termine some criminal proceeding.

  A. You are certainly right, Mr. Justice, if I may say so, in terms of an examination question. I find it exceedingly difficult to think that any jury would convict or that an appellate court would affirm a conviction of a criminal offense for the publication of materials which this Court has said could be published. Simply as a practical matter whether it was a crime or not, these are the same materials that were involved in The New York Times case. All we did was publish them. I find it difficult to think that such a case should be prosecuted or could effectively be prosecuted.

  Q. But the standard concededly is not the same.

  A. It is not the same issue, and I repeat, I think it would technically be a crime if the materials remained classified. Now, if I may get on—

  Justice Stewart:

  Q. Mr. Solicitor General, just before you do, this brings me back to my original question of a few moments ago as to what the real basic issue in this case is. As I understand it, you are not claiming that you are entitled to an injunction simply or solely because this is classified material.

  A. No.

  Q. Nor do I understand it that you are claiming that you are entitled to an injunction because it was stolen from you, that it is your property. You are claiming rather and basically that whether or not it is classified or however it is classified, and however it was acquired by these newspapers, the public disclosure of this material would pose a grave and immediate danger to the security of the United States of America, period.

  A. Yes, Mr. Justice.

  Q. Now, isn’t that correct?

  A. Yes, Mr. Justice.

  Justice Stewart:

  Q. So declassification vel non does not have much to do with the basic issue, does it?

  A. I agree with you, except that it is part of the setting. If this material had never been classified, I think we would have a considerably greater difficulty in coming in and saying—for example, suppose the material had been included in a public speech made by the President of the United States.

  Q. Then it would be in the public domain already. That is something else.