The Attorney General has given me a copy of your memorandum March 24.…[It] contains numerous references to contacts with people in the Department concerning the March 8, 1971, theft. A cursory examination of memorandum would lead one to conclude that a close liaison did exist between the investigative [FBI] and prosecutive [Department of Justice] functions. Quite the contrary was true. No specific report of the burglary was in fact made to the Attorney General or to this Division.
After noting that a discussion between two FBI officials and department officials about seeking an injunction against public release of the documents took place face-to-face ten days after the burglary, Mardian wrote, “Other contacts were equally ineffectual vehicles to advise the department of the fact of the burglary.”
As Katharine Graham and the Post’s lawyer struggled with the ethical and legal implications of publishing the secrets revealed in the stolen documents, no one at the Post realized the attorney general was bluffing when he repeatedly and forcefully urged the Post not to publish. He had used strong language—“could endanger lives”—in those conversations. That he had neither read nor been briefed on the stolen files was not known until exchanges between the Department of Justice and FBI officials, part of the official record of the investigation of the burglary, were made available to me by the FBI years later in response to a Freedom of Information Act request.
It was clear that the stolen files contained no information about national defense and that public knowledge of their contents could not endanger national security. Given the nature of the documents and the unusual way I had received them—stolen FBI files mailed by burglars who had stolen them—we of course carefully considered the ethical and legal issues involved in reporting on their contents. The impact of the attorney general’s claims may have been diminished somewhat by the fact that he and other Nixon administration officials often had claimed that stories endangered national security. That threat had become a preferred Nixon administration means of trying to intimidate journalists from reporting information the administration wanted to keep secret. The threat was seldom, if ever, made because the story in question actually endangered national security. Usually it was made because the stories aired deception, wrongdoing, or other secret information the Nixon administration did not want the public to know. To be fair, the attempt to use vague but threatening national security claims to suppress stories had been used before Nixon was president and has been used since that time by nearly every administration, but the Nixon administration made a habit of using the claim. That left journalists in the difficult position of having to assess, each time the threat was made, whether it was genuine or empty. The possibility that publishing information from the stolen files could endanger lives was the most extreme claim made by Mitchell. After examining the documents carefully, it seemed that claim was a reckless attempt to intimidate and prevent important information from reaching the public.
What seemed likely was that publication of the secrets, in addition to delivering information to the public about the secret policies and actions of one of its most important institutions, would do what the Post’s legendary editorial cartoonist Herblock suggested in a cartoon published a couple days later in the newspaper. In the cartoon, two men in rumpled suits who bear a striking resemblance to John Mitchell and J. Edgar Hoover stand side by side in a battered large garbage can. The Mitchell character wears a Keystone Cop hat and the J. Edgar Hoover character wears a Sherlock Holmes hat. Both of them also wear sour expressions. Fish skeletons, empty tin cans, and other debris are falling out of the garbage can, which is marked FBI FILES. Mitchell holds a protest sign: PUBLICATION OF STORIES ABOUT PILFERED FBI DOCUMENTS COULD BE DANGEROUS. At the top is the caption “And Besides, It Makes Us Look Like Damn Fools.”
The question of whether to publish the stolen files presented Graham with an unprecedented challenge. It was the first time a journalist had been given secret government documents by sources from outside government who had stolen the documents. Throughout history, inside whistleblowers have leaked classified information to journalists, but never had people not employed by the government stolen secret government records and given them to a journalist. Less than two years later, journalist Les Whitten, a colleague of investigative columnist Jack Anderson, would become the second journalist to receive secret government documents from a nongovernment source who had stolen the documents. The documents he received were stolen by activists who temporarily occupied the Washington headquarters of the Bureau of Indian Affairs. Whitten was arrested by the FBI and charged with possessing stolen government documents, charges that were later dropped.
For Post editors, the responsibility to reveal this information to the public far outweighed concern about how it had become available to us—as the fruit of a burglary. How could we not publish this information? It was important for people to have access to evidence—no matter how we had acquired it—that the FBI, under Hoover’s leadership, engaged in practices that had never been reported, probably were unconstitutional, and were counter to the public’s understanding of Hoover and the FBI. The publisher did not agree.
This Herblock cartoon was published in the Washington Post and other newspapers shortly after the burglary.
As I wrote the story, I did not know that a different rationale was prevailing at the highest level of the newspaper. Throughout the day, as I wrote and called people who were named in the files—some of whom I had known as sources when I worked as a reporter in Philadelphia—top Post editors, Graham, and the company’s legal counsel debated whether to publish. Not until I submitted the story close to the 6 p.m. deadline did I learn there was a possibility the story would not be published. Graham and the company’s legal counsel opposed publication, primarily on the grounds that reporting on secret files that had been stolen had never been done before and was likely to be considered highly questionable ethically and legally. During the debate, Bradlee and Bagdikian continued to make the case that the significance of the information was such that it should be published, no matter who the source was. The debate continued until 10 p.m., when Graham agreed to publish. It was the first time Graham was confronted with a Nixon administration demand that she suppress a story.
After the decision was made to publish, Bradlee prepared a statement for release:
After a painstaking review of the documents and the Attorney General’s request, and with the advice of counsel, the editors of the Post decided to print those portions of the documents that:
1) clearly did not damage the national interest, and
2) did not unfairly damage individuals mentioned in the documents.
The story was distributed on the Post’s wire service shortly after Graham made her decision and was published prominently the next day on the front page of the Post. The same day the Post published the first story about the stolen files, the New York Times published a story reporting the attorney general’s plea that stories not be published about them. The Times also reported that a spokesman for Mitchell said he was in “conversations” with the Washington Post.
Post executives were in untested waters that day. Given the unprecedented circumstance, it is understandable that the decision to publish was difficult for Graham. It was the first of the numerous difficult historic decisions she would make to publish stories that the Nixon administration had demanded she suppress. Some of her well-known decisions were heroic First Amendment defenses in the face of threats by the administration to damage the Washington Post economically, something it had the power to do through denial of the company’s broadcast licenses. Just three months later, in June 1971, she made her second such decision when the New York Times and then the Washington Post decided to publish stories about the Pentagon Papers, the important secret history of the decisions that shaped the war in Vietnam and that had been given to the newspapers by former Pentagon and State Department analyst Daniel Ellsberg.
The first story about the files stolen from the Media FBI office, p
ublished by the Washington Post on the front page on March 24, 1971. Many other news organi-zations, including the Los Angeles Times and the Philadelphia Inquirer, also ran the Post story on their front pages that day.
When copies of the same stolen FBI files arrived in the Washington bureaus of the New York Times and the Los Angeles Times the same day I received them, they were handled differently. At the Los Angeles Times bureau, someone intercepted the envelope, opened it, and did not deliver it to the journalist to whom it was addressed—prominent investigative reporter Jack Nelson. It is not clear whether Tom Wicker, the person to whom the files sent to the New York Times were addressed, received the envelope. He did not write about the files at that time. According to FBI records of what transpired, when the files arrived in the two Washington news bureaus, people in each office immediately called the FBI and reported that they had received the documents and then promptly delivered the files to the FBI. Someone at the Los Angeles Times bureau diverted the documents independently, not only without informing Nelson that they had arrived and without copying the files, but apparently also without informing the top editors at the home office in Los Angeles, where editors decided that day to publish the Washington Post story the next day, the same day it appeared in the Post.
Nelson was astounded when I told him years later that the FBI record of the MEDBURG investigation revealed files had arrived in his newsroom, addressed to him, and been intercepted and delivered to the FBI. He recalled being eager to get copies of the stolen files and, soon after the burglary, called sources in the antiwar movement in an effort to find someone who would provide access to them. As Nelson revealed in his memoir, Scoop: The Evolution of a Southern Reporter, published posthumously in 2013, during 1970 and 1971, Hoover was so furious about Nelson’s coverage of the bureau that he conducted a campaign to get the Los Angeles Times to fire Nelson. When the Times was the only major news organization not notified when the FBI was about to arrest Angela Davis on October 13, 1970, Washington bureau chief David Kraslow asked why. Tom Bishop, head of the bureau’s public relations operation, said Nelson’s stories were the problem. Shouting into the phone, he told Kraslow, “When you get rid of that son of a bitch with a vendetta against the FBI, we’ll cooperate with you.” In 2011, the Times applied for Nelson’s FBI file and found similar attacks on Nelson.
At the New York Times, the documents must have been copied before they were delivered to the FBI, for the Times published a story about the files, written by Fred Graham, the day after the Washington Post’s story. In 2013, Graham said Wicker probably received the files but turned them over to him because Graham regularly covered the FBI. Regarding his rationale for giving the files to the FBI, Graham said that would be “typical—write the story first and then be a good citizen and give the files to the FBI.” Actually, he did it in reverse order.
According to FBI records, Los Angeles Times journalists also turned over to the FBI copies of Media files they subsequently received in the paper’s Washington and Chicago bureaus. The FBI was appreciative of this gesture. All documents given to the FBI by journalists were subjected to lab tests for fingerprints and for the unique marks made by the copier used to make the copies.
After I learned years later from the FBI’s MEDBURG investigative records that the files sent to the Los Angeles Times never reached Nelson—and may not have reached Wicker—I realized that the files may have reached me as the result of somewhat unusual circumstances. Given what happened to the files mailed to the other journalists, it seems reasonable to assume that the FBI had arranged after the burglary for mail addressed to at least Nelson to be monitored on the FBI’s behalf at the newspaper’s Washington office by someone who was, as the bureau described such people, “friendly” to the FBI. Because Nelson and Wicker were among the very few journalists who had written articles that raised critical questions about the FBI, bureau officials might have assumed that if the stolen files were distributed, those two journalists would be likely recipients.
What about the Washington Post? Whose mail there might have been monitored as part of an effort to secure the stolen files and prevent them from being reported? Clawson, the Post reporter who covered the FBI, was regarded by the bureau as a “friend,” so his mail would not have been monitored. At that time, only one person at the Post, Alan Barth, a respected veteran editorial writer, had written commentary critical of the FBI. If anyone’s mail there would have been watched with an eye to intercepting the files and preventing them from being reported, it might have been Barth’s. It was unlikely my mail would have been watched because, unlike Nelson, Wicker, or Barth, I had no track record as a published critic of the FBI. That, plus my generally lower profile, probably made it possible for the envelope containing the stolen files to slip into my mailbox unnoticed. After I found the burglars years later, I learned that they did indeed choose Nelson and Wicker as recipients because of their reputation for raising questions about FBI practices. I was chosen as a recipient because they respected my earlier reporting in Philadelphia and had followed my coverage of the Catholic peace movement after I moved to the Washington Post. Based on our past reporting, they thought the three of us and the heads of our news organizations would recognize that the files were newsworthy and push for publication.
A few weeks later, I too qualified for having my mail watched. One Saturday afternoon I went to the newsroom to see if the burglars had sent more documents. Envelopes containing more files arrived at random times, so I went to the newsroom every day in order to read and report on them as soon as they arrived. I found a new set in my mailbox that Saturday. As I started to read them, a tall white-haired man I had never seen before appeared at my desk. He said he worked in the mailroom, and as he glanced at the evidence on my desk, he said he had noticed that I had been receiving stolen FBI files recently. He also hastened to say he had “noticed you’re from Johnstown, Pennsylvania.” I thought that was strange and asked him how he knew that. “I see all those letters your mother sends you.” My mother had never written to me at the Washington Post, and she probably never knew the address of the newspaper. My visitor from the mailroom that Saturday seemed to be making a ham-handed attempt to “enhance” my paranoia in the manner prescribed in the first Media file I had reported on. It was too late.
THE FACT THAT I did not know the names of my sources added an unusual twist to the ethics of my relationship with them. Not only is the identity of a journalist’s confidential source usually known to the journalist, but that source usually asks the journalist to enter into an agreement to refuse to reveal his or her identity, even if the journalist is pressured to do so. My unknown sources had asked nothing of me except what they asked of other recipients in the cover letter that accompanied the files: that I consider making public the information they had sent me.
Like most journalists, I always have preferred to fully identify sources so their veracity can be judged, not only by me but also by readers on the basis of what is known about them. To casually grant confidentiality diminishes confidence in journalism. When a reporter uses confidential sources, she is saying “trust me,” an arrogant request to the reader that should be made only when the information is of such great importance that it should be transmitted to the public even if the source must remain anonymous. My sources’ credibility was not at stake; the authenticity of the files had been confirmed at the highest level of the government. The issue was whether I had an obligation to protect them. I possessed documents I assumed my sources had touched and that therefore might contain fingerprints that could be used by the FBI in its efforts to arrest them. That meant that though I did not know who my sources were and therefore could not reveal their names, I was nevertheless in a position to betray them if I gave law enforcement agents copies of the files they sent me. In recent years, numerous reporters had refused to obey government subpoenas that demanded that they name confidential sources before grand juries. Reporters refused to comply with such subpoenas primarily on two g
rounds—in order not to be questioned inside a closed grand jury chamber, where no one could know whether they revealed confidential information, and in order not to become, or be seen as becoming, an arm of law enforcement, except in very rare instances, such as when withholding information could lead to loss of life. The then recent case of New York Times reporter Earl Caldwell was a notable example. Caldwell had refused to name his confidential sources when federal prosecutors in the Bay Area subpoenaed him in connection with an investigation of the Black Panthers. In some such cases, the government persisted and journalists went to jail rather than name their sources.
The atmosphere in journalism by 1971 was such that many journalists, including me, had thought about what we would do if confronted with a government demand to reveal confidential sources. In fact, there were so many confrontations over journalists’ legal and ethical responsibilities to protect confidential sources that a year earlier a group of respected editors, reporters, and lawyers, including Nelson, established the Reporters Committee for Freedom of the Press, to help journalists who faced such challenges get legal assistance. To some degree, being willing to pay the price of going to jail rather than divulge confidential sources had become simply another skill a reporter needed to develop if the journalist was going to report on controversial government issues.
While Graham and the editors discussed whether the Post would publish a story about the revelations in the documents, I, assuming they would publish, thought about what I would do if asked by the FBI to turn over what I had received from the burglars. I concluded that my unknown burglar sources deserved my protection as much as they would if they were sources known to me who had asked me to promise to protect their identity. They had passed an important confidential source test: They had provided me with information important to public discourse that was not otherwise available. I assumed that they, at great risk, had performed what eventually would be seen as a valuable public service, though I had no idea at the time how significant that service ultimately would be.
The Burglary Page 23
