by James Rosen
The battle was joined shortly after Nixon’s hundredth day in office, with the publication in the New York Times, on May 9, 1969, of William Beecher’s front-page story “Cambodia Raids Go Unprotested.” Beecher accurately reported that B-52 bomber planes had secretly attacked North Vietnamese supply depots in Cambodia, the ostensibly neutral border country the North had long used as a base of operations. Though Beecher’s report generated no public outcry—unlike the firestorm that erupted four years later, when the secret bombing of Cambodia was revealed in greater depth—the story enraged Kissinger.14
From Key Biscayne, Florida, where he and Nixon were staying, the national security adviser wasted no time calling FBI director J. Edgar Hoover, demanding the Bureau undertake a “major effort” to identify who was behind this “extraordinarily damaging…very dangerous” leak. Later that day, Hoover called Kissinger back with the prompt assessment that the Beecher story, and others he had recently published, “probably” relied on leaks from a member of Kissinger’s own staff at NSC. According to Hoover, a livid Kissinger vowed to “destroy whoever did this if we can find him, no matter where he is.” Hoover named several suspects, and by 6:00 p.m. that night, the home telephone of one such staff member, Morton Halperin—also staying in Key Biscayne that weekend—was placed under surveillance. Under current laws, no court order was required for the national security wiretap, only the signature of the attorney general, which Hoover sought, and got, three days later.15
Thus began a wiretapping program that continued for the next twenty-one months, expanding to include twelve government officials and four prominent newsmen. In May 1973, fourteen months after Mitchell resigned as attorney general, and one year after Hoover’s death, the Times, fittingly, exposed the program, which later figured prominently at Nixon’s impeachment hearings. Mitchell was questioned under oath on the subject five times: first by the FBI in May 1973; again, briefly, that July, in his appearances before the Senate Watergate committee; by staff lawyers for the Watergate Special Prosecution Force that December; and twice more in July 1974, first by investigators for the House Judiciary Committee, then by lawmakers in public session. The records of Mitchell’s classified interrogations by the Watergate prosecutors and the House investigators are previously unpublished.
At first, responding to questions from two FBI agents in his New York law office on May 11, 1973—the day after his indictment in the Vesco case—Mitchell maintained that he “never saw nor approved any such requests” for wiretaps, that “none were submitted to him by the FBI.” He said he received no fruits from the wiretaps and claimed to have first learned about the whole program in “the spring or summer” of 1969. How likely was it, the agents pressed, that the attorney general would be unaware of the FBI wiretapping prominent journalists as well as senior officials at the NSC, Pentagon, and State Department? Mitchell said it wouldn’t have been unusual for him to have been unaware of the program “at its inception.” Director Hoover, he contended, would often “circumvent the attorney general’s office” on sensitive matters, and deal directly with the president. Mitchell claimed he warned either Kissinger or Alexander Haig—the wiretaps’ chief consumer—that the program was “explosive,” and urged a halt to the “dangerous game we were playing.”16
These answers did not stand for long. Two days later, the acting FBI director, William Ruckelshaus, a former Mitchell aide, announced at a news conference that all of the records relating to the 1969–71 wiretaps had been retrieved from the White House safe of John Ehrlichman, where they had been relocated in the summer of 1971.17 Ruckelshaus said the records revealed that Mitchell had personally approved the wiretaps, and had even assured Hoover, mistakenly, that no record of them existed.18 Mitchell promptly dashed off a “personal and confidential” letter to Ruckelshaus demanding to know the basis for both assertions. “My purpose in writing,” Mitchell said, was “not to generate a confrontation with the FBI…but to obtain factual information which, if it exists, is contrary to my best recollection.”19
Ruckelshaus responded with a “top secret” letter in which he revealed that the FBI had discovered fifteen wiretap authorization forms signed and submitted by Hoover, each approved with Mitchell’s own signature, the earliest dated May 12, 1969. One form featured Mitchell’s handwritten request that the device be “installed as soon as possible,” another his scribbled notation that a “higher authority”—meaning Nixon—had “requested that this be done immediately.”20 A third FBI document, captioned “Request for Electronic Surveillance by Attorney General and President,” recorded Mitchell’s order, in September 1969, for the placement of “immediate electronic surveillance (wiretap)” on CBS News correspondent Marvin Kalb. Mitchell further requested the transcripts be sent “only to Mr. Ehrlichman…and himself.” That same day, Hoover sent over, and Mitchell signed, the by-now-standard authorization form for the Kalb wiretap.21 Also unearthed was Hoover’s handwritten note recording Mitchell’s mistaken assurance that all of these documents had been destroyed. An angry Ruckelshaus all but accused Mitchell of lying to the FBI:
At the time you were interviewed by FBI special agents on May 11, 1973, and denied that you had seen or approved any such requests from the FBI for wiretap coverage, we had not recovered the FBI file material and, accordingly, the agents were not in a position to apprise you that direct evidence to the contrary existed.22
Thus by July 1973, when Mitchell testified before the Senate Watergate committee, the evidentiary picture had changed considerably. When Chief Counsel Sam Dash, a hostile interrogator, asked if Mitchell had been “aware of the leaking and those wiretaps,” Mitchell answered with great caution. “I find it very hard to give you a specific answer other than the fact that, yes, I was,” Mitchell testified. “To what extent, I do not know.” Didn’t the taps require the attorney general’s authorization? Mitchell agreed the FBI “probably” wouldn’t have operated without it. Then he mentioned that as attorney general, he had instituted a rule mandating all national security wiretaps be reauthorized every ninety days. However, pointing this out was, at best, a ruse; for while Mitchell had indeed enacted such a rule, it was, as he well knew, never observed in the case of the 1969–71 taps. As Ruckelshaus had noted, the Bureau’s review found “no ninety-day continuations were apparently sought,” despite the fact that some taps remained in place much longer—nearly two years, in Halperin’s case.23
When the Watergate prosecutors interviewed him about the wiretap program, in December 1973, Mitchell, perhaps fearing indictment, abandoned the ruse and other key aspects of his earlier testimony. According to the only record of this interrogation, previously unpublished, Mitchell still maintained he did not recall signing any authorizations, especially for the tap on White House speechwriter William Safire, which Mitchell said would have “raised my eyebrows.” However, Mitchell also “admitted that probably the project did not comply with the departmental regulations” requiring reauthorization every ninety days. And where Mitchell had told the FBI he was “unaware of any summaries…setting forth the results of these wiretaps,” he now acknowledged having received directly from Hoover “a limited number of summaries…which were kept in his safe.” Mitchell had no choice but to admit as much, as the documents showed he had explicitly ordered the data from the Kalb tap routed to Ehrlichman and himself. Finally, Mitchell renounced his claim that he first learned of the program months after its inception, saying he “knew the wiretap information was originally sent to Haig.”24
Despite the fifteen authorization forms bearing his signature, Mitchell never acknowledged signing them to any of the investigators who interrogated him during the Watergate era. “A pipe dream,” he told Time in February 1973. “Wiretaps on reporters were never authorized by me.”25 As late as July 1974, he told the House Judiciary Committee he “[did] not recall specifically authorizing any wiretaps himself.”26 That same year, Richard Kleindienst said Mitchell “told me once that he had not authorized them.”27 Not until 1987, to a
uthor Len Colodny, did Mitchell finally acknowledge—haltingly, almost begrudgingly—his true role in the affair.
COLODNY: It’s either gonna be Kissinger, Haig or Haldeman…. Because those taps were only authorized by those people. Or requested. I’m sorry; you authorized all of them. They, they requested them.
MITCHELL: Gosh, Len, I, um—they, um—after those meetings they had—I’m talking about, ah, Nixon, Kissinger, Hoover, and so forth and so on—ah, they sort of came over and, as I recall, in a bunch. And they, ah—the way it was handled was that, uh, Hoover would take and put together the back-up material, and, um, uh, send it over to my office for consideration. And I’d look at it, with the background I had, [and] would authorize it.28
In the end, Mitchell’s deceptions were unnecessary. As Ruckelshaus wrote, the FBI found no basis to suggest the wiretaps were anything “other than lawful.” This view was echoed by Ruckelshaus’s successor, Elliot Richardson, who so advised the Senate Foreign Relations Committee, in writing, in September 1973. Even Winston Lord, one of the wiretapped NSC aides, recognized the valid concerns underpinning the surveillance. “At the time when this apparently took place,” Lord told CBS News in May 1973, “there were massive leaks affecting national security, and I think the administration had a responsibility to try to stop those leaks.”29
Early on Sunday morning, June 13, 1971, four months after the NSC wiretaps were shut off for good, the phone rang in Mitchell’s Watergate apartment. Melvin Laird, the secretary of defense, was on the line. When Mel Laird wanted to talk, Mitchell took the call. A Nebraska native and World War II veteran, Laird began serving in the Wisconsin state legislature in 1946, when he was twenty-four. By 1952, he was elected to Congress, where he remained for the next sixteen years, serving on the House Appropriations Committee. Nixon chose Laird to run the Pentagon because he was popular on Capitol Hill; but if he imagined Laird would simply accept his and Kissinger’s deceptions, as Rogers did, the president was disappointed. One Pentagon insider recalled Laird habitually exceeding Nixon’s troop withdrawal orders in Vietnam: “Mel Laird never did what the President told him to do. He would frequently do just the opposite.”30
Now, on this Sunday morning in June 1971, Laird wanted Mitchell’s advice. The defense secretary was about to appear on Face the Nation and wanted to know what he should say if he was questioned about that morning’s front-page story in the Times, by Neil Sheehan, headlined “Vietnam Archive: Pentagon Study Traces 3 Decades of Growing U.S. Involvement.” The story described how Robert S. McNamara, secretary of defense under Presidents Kennedy and Johnson, had commissioned a massive internal study entitled “History of U.S. Decision-Making Process on Vietnam Policy,” consisting of several thousand classified documents and dubbed the Pentagon Papers—which the Times had obtained and was now publishing in serial form. Mitchell, according to an aide, “hadn’t even seen the paper yet.” “Just tell them that you’ve referred it to the Justice Department,” Mitchell advised, “and don’t say anything else.”31
Ironically, Laird was not asked about the story that morning, even though his questioners included a Times correspondent—a breach of corporate synergy unimaginable in later years. Sheehan’s article met with like indifference at the White House. Entirely ignorant of the Pentagon Papers, Nixon skipped over the Times story, his concerns that morning fixed instead on obtaining the latest Vietnam casualty figures and reviewing the press coverage of his daughter Tricia’s wedding. Not until Nixon asked Alexander Haig, halfway through a casual telephone conversation, “Nothing else of interest in the world today?” did anyone even discuss the matter with him. Yes, Haig said, there was something “very significant” going on: “This Goddamn New York Times expose of the most highly classified documents of the war.” Nixon asked if the documents had been leaked out of the Pentagon. Haig explained that McNamara had commissioned the study, and that it had been compiled by “the peaceniks over there”—a snide reference to Halperin and other Kissinger aides.32
Several accounts of the Pentagon Papers have pointed to Nixon’s next call that Sunday afternoon—one he received—as decisive in changing his outlook, from indifferent opportunism to punitive fury. The caller was Kissinger, then in California. In his memoir, The Ends of Power, H. R. Haldeman claimed Kissinger aggressively needled Nixon to impress upon him the seriousness of the Times’ challenge to his authority. “It shows you’re a weakling, Mr. President,” Haldeman quoted Kissinger as saying. “The fact that some idiot can publish all of the diplomatic secrets of this country on his own is damaging to your image, as far as the Soviets are concerned, and it could destroy our ability to conduct foreign policy. If the other powers feel that we can’t control internal leaks, they will never agree to secret negotiations.”33
In a 1995 interview, Kissinger rejected the widely accepted notion that he incited Nixon into unwisely aggressive action in the Pentagon Papers case. The former national security adviser acknowledged only that he favored legal action to halt further publication. “I thought the government had a duty to protect its secrets,” he said. “People have to remember: The Pentagon Papers did not affect Nixon at all. None of the Pentagon Papers dealt with the Nixon administration. They all [sic] dealt with the Johnson administration. Nothing would have been easier than to get political benefit from them and say, ‘This is what we inherited, see the mess?’ So neither Nixon nor I had any concern that it was any damage to us, personally. But we felt that if the government didn’t protect its secrets, the whole apparatus would be in danger.”34
The “apparatus,” of course, was not merely the foreign policy process as it existed on organizational charts, but the elaborate network of secret back-channels, in and out of government, that Nixon and Kissinger used to conduct war and diplomacy. Nixon sought no injunctions or prosecutions that Sunday. The president expressed contempt for the Times—especially that “bastard,” Sheehan, and the paper’s Washington bureau chief, “that damn Jew [Max] Frankel”—but instead of ordering a swift and massive counteroffensive, Nixon mused aloud about letting some time pass: “If the statute of limitations is a year…we can charge them then…just go in and…subpoena all these bastards and bring the case.” Indeed, when Haldeman repeated Haig’s argument that immediate action would only escalate the crisis, Nixon replied: “I think he’s right.”
The Times published its second installment of the Papers on Monday morning, under the headline “Vietnam Archive: A Consensus to Bomb Developed Before ’64 Election, Study Says.” The accompanying documents showed the Johnson administration had secretly developed plans for full-scale aerial attacks on North Vietnam even as the White House castigated the president’s GOP opponent, Barry Goldwater, for advocating the same tactic. Entering the Oval Office shortly after noon, Haig made the first mention to the president of the name of the culprit behind the massive leak. “Ellsberg,” Nixon repeated. “I’ve never heard of him.”
The son of Midwestern Jews who converted to Christian Science, Daniel Ellsberg, then forty, was a former Marine who had earned his undergraduate and doctoral degrees and returned to teach at Harvard. There he became a leading exponent of the theory of “madness” as an instrument of national security policymakers—cutting-edge stuff in the mid-fifties—and received an invitation to lecture on “the conscious political use of irrational military threats” from his more distinguished colleague, Henry Kissinger. Ellsberg completed two tours of Vietnam, as a Pentagon consultant for the RAND Corporation think tank and later as a member of the counterinsurgency team led by Major General Edward G. Lansdale in Saigon. Once a proponent of the war, Ellsberg returned to the States in 1967 harboring grave doubts about the efficacy, and morality, of continued American involvement in it. In 1969, through contacts at RAND, Ellsberg obtained a set of the Pentagon Papers and began reading the study in its entirety. He spent the next two years hardening in his opposition to the war, and in his antipathy for Kissinger. Early efforts to make the Papers public through members of Congress failed, an
d not until he contacted the Times’ Sheehan, to whom he had previously leaked information, did Ellsberg find a willing partner in the largest unauthorized disclosure of classified material in American history.
Now, on the second day of Sheehan’s series, the Nixon administration had zeroed in on Ellsberg as the likely culprit. Attorney General Mitchell, undisturbed by Sunday’s report, heard again from Laird on Monday morning, and this time, according to Mitchell, the defense secretary advised that continued publication of the Papers would harm the national defense.35 Mitchell decided to act. In a telephone call Monday evening, Ehrlichman told the president that Mitchell wanted approval for DOJ to send a cease-and-desist telegram to the Times before Tuesday’s editions came out. “Hell, I wouldn’t prosecute the Times,” Nixon replied. “My view is to prosecute the Goddamn pricks that gave [the Papers] to them.” Seconds later, Nixon had Mitchell on the line. “What is your advice on this Times thing, John?” the president asked. “You would like to do it?” Nixon assumed he and Mitchell both knew what he was talking about. “I would believe so, Mr. President,” Mitchell replied. “Otherwise, we will look a little foolish in not following through on our legal obligations.”
Nixon then announced that Kissinger had joined them on a separate line. Kissinger promptly conveyed to Nixon and Mitchell the view—which he attributed to former president Johnson and Walt Rostow, Kissinger’s predecessor as national security adviser—that the Times series represented “an attack on the whole integrity of government…. If whole file cabinets can be stolen and then made available to the press, you can’t have orderly government anymore.” Mitchell agreed to initiate an “undercover investigation,” but couldn’t resist a dig at Kissinger. “We’ve got some information we’ve developed as to where these copies are and who…leaked them,” Mitchell said. “And the prime suspect, according to your friend Rostow you’re quoting, is a gentleman by the name of Ellsberg.”
