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June 13, 1971: The New York Times begins to publish the Pentagon Papers.

THE PENTAGON PAPERS

The Secret Briefs and the Secret Evidence

National Security Archive Electronic Briefing Book No. 348

Posted - June 10, 2011 - Updated - June 13, 2011

Edited By John Prados

For more information contact:
John Prados - 202/994-7000

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In the news

"After 40 Years, the Complete Pentagon Papers"
By Michael Cooper and Sam Roberts
The New York Times
June 7, 2011

More on the Pentagon Papers

Pentagon Papers Home

The Secret Briefs and the Secret Evidence.
Expert commentary from Archive analyst John Prados

Supreme Court Briefs and Opinions.
Audio and transcripts

White House Telephone Conversations.
Audio and transcripts

Intelligence and Vietnam.
The Top Secret 1969 State Department Study

Excerpts from Nixon, Kissinger and Haldeman Memoirs

Richard Nixon, The Memoirs of Richard Nixon (New York: Grosset & Dunlap, 1978), pp. 508-515.

Henry Kissinger, Years of Upheaval (Boston: Little, Brown and Company, 1982), pp. 115-118.

H.R. Haldeman, The Haldeman Diaries (New York: Berkeley Books, 1995), pp. 363-371, 378.

Inside the Pentagon Papers
Edited by John Prados and Margaret Pratt Porter
University Press of Kansas
ISBN: 0-7006-1325-0

 

In the rapid progression of the Pentagon Papers from newspaper revelation to court case to judgment by the Supreme Court of the United States during a few weeks in June 1971, the Nixon administration failed to stop the presses. The Justice Department made two major submissions to Courts on exactly what information in the history "United States-Vietnam Relations 1945-1967" was so sensitive that it justified keeping secret the entire forty-seven part history. One of these submissions was to the Supreme Court made by Erwin N. Griswold, Solicitor General of the United States, which identified 11 drop-dead secrets. The other, which Griswold incorporated into his text, was made in New York City to the United States Court of Appeals for the Second Circuit, which identified 17 irreparably damaging secrets.

Here the Archive examines the government's evidence, as opposed to its legal arguments and justifications, as to why it wanted the Department of Defense study to remain shrouded in a cloak of secrecy, with a detailed commentary with documents from the 11 and 17 separate claims.

Please note that this examination of evidence is in no way intended to bypass or moot the legal arguments in this first amendment case. The Supreme Court decided against the government's demand for the right to impose prior restraint on newspapers intending to publish leaked secret documents and news reports based upon them. The legal principles are both important and sound. Going before the Courts, however, both the New York Times and the Washington Post, contended that they were not claiming exemption from all prior restraints, but rather that the U.S. government's claim was not strong enough to justify Court action to protect the secrecy of the documents. Nevertheless, the U.S. government asserted that the information in the Pentagon Papers was indeed so sensitive that in fact a prior restraint was fully justified.

A few words are in order at the outset about the government briefs setting out the evidence, the core of which is found in two key documents. The Griswold secret brief (annotated "Reviewed for Declassification" with dates) is the capstone document. It continues to have deletions in it to this day. As Griswold recounted the process in the oral argument, this brief identified the 11 items or sections of the Pentagon Papers disclosure of which would cause irreparable damage to U.S. national security. We have commented upon each of the 11 items in the brief and attached the documents involved so readers may judge for themselves.

The second document is a "Special Appendix" submitted on June 21, 1971 to the United States Court of Appeals for the Second Circuit by the U.S. government. The appendix makes a set of allegations regarding evidence drawn from the testimony of several U.S. officials who appeared in New York court hearings, followed by claims about the impact on current military operations of publication of the Pentagon Papers. The heart of this document is a list of seventeen references to Pentagon Papers material each with an explanation of how their publication would reveal secrets of great import. That the U.S. government considered this a vital part of its claim is demonstrated by the fact that Solicitor General Griswold included the same items in his "Supplemental List" to the Supreme Court and also separately submitted the "Special Appendix" document in addition to his court briefs. In this examination of the secret brief, we have identified and commented on each of the 17 items in the government's "Special Appendix" to the Second Circuit.

One note on the items in this collection: In the course of the court case on the Pentagon Papers the U.S. government promised to do its own declassification review of the study. It did so, and exercised free reign on decisions to delete material from its edition, which was published as a document of the House Armed Services Committee in 1972. In connection with the "Special Appendix" documents we have made an effort to reproduce the items from the government edition of the Pentagon Papers unless the materials were so lengthy this was not practical. Where material from the government edition appears, that means the United States Government, in its own declassification decisions made in 1971, in the immediate aftermath of the Pentagon Papers court case, did not feel the item in question was sensitive enough to keep secret. In cases where material has been deleted from the House Armed Services Committee edition, the deletion is reproduced along with the relevant page or pages of the Senator Mike Gravel edition of the Pentagon Papers so that the reader can see exactly what the deletions were.

BRIEF FOR THE UNITED STATES (SECRET PORTION)

The Griswold secret brief (annotated "Reviewed for Declassification" with dates) identifies the 11 items or sections of the Pentagon Papers disclosure of which would cause irreparable damage to U.S. national security. We have commented upon each of the 11 items in the brief and attached the documents involved so the reader may judge for himself.

In the discussion that follows the reader should keep in mind that the relevant legal standard articulated to the Supreme Court by Erwin Griswold, the Solicitor General of the United States, is that the identified material would, if revealed, cause direct and immediate damage to the national security of the United States.

NOTE: The first page reference in each case refers to relevant pages of Solicitor General Griswold's secret brief. Additional references (linked below) are the relevant portions of the Pentagon Papers study that Griswold cites as evidence in his brief. Since in most cases we have used pages from the Senator Gravel edition of the Pentagon Papers (rather than the version declassified by the House Armed Services Committee) the page references will not always match those cited by Griswold but are, in fact, correct. Griswold Claim No. 1 (pp. 4-5)
The Griswold secret brief starts off with a blanket claim for damage assumed to result from the release of volumes of the Pentagon Papers dealing with the diplomacy of attempts to open negotiations from 1964 to 1968 (shown here as VI-C-1 through VI-C-4 – a two page summary of the four volumes was included in the 21 June 1971 affidavit by William Macomber, Deputy Under Secretary of State for Administration, in the Washington Post case). Probably the most important point to be made is that these diplomatic volumes were not part of the leak, and were never released by Daniel Ellsberg or anyone else. Ellsberg has made clear in public forums and commentaries that he refused to include these volumes in the leak because he feared release would give the Nixon administration an excuse to halt ongoing negotiations for a Vietnam settlement. At trial the government professed not to know exactly what portions of the Pentagon Papers had been leaked, and the courts agreed to proceed on the basis of assuming all the original documents were compromised. In point of fact, however, neither specific nor general damage could have resulted here and the argument was moot.

Griswold Claim No. 2 (p. 4)
The first specific claim is that the diplomatic volumes contain derogatory comments that might be offensive to nations or governments, in particular U.S. allies with troops in South Vietnam, principally South Korea, Thailand, and Australia. Thailand is singled out as critical because 65% of U .S. air sorties over Vietnam were then being launched from U.S. bases in that nation. The diplomatic volumes were, in fact, largely declassified under the Freedom of Information Act in 1978; while there are some significant deletions, probably more than 99% of the material was in fact released. In the diplomatic papers as released there are only five references to Australia, two to South Korea, and one to Thailand in a text of more than 1,000 pages. Most of them are notations that one or another country had or had not been briefed on some initiative. None is derogatory.

The Griswold brief makes the claim that the pace of U.S. withdrawal from Vietnam would have to become slower if the diplomatic volumes were released. The claim is purely speculative. It is equally likely that, faced with the withdrawal of its allies, the U.S. would have withdrawn more rapidly itself.

Griswold Claim No. 3 (p. 5)
The Griswold Brief asserts that there are specific references to the names and activities of CIA agents "still active in Southeast Asia.” Almost all the CIA officers identified in the documents were in fact high level officials like Richard Helms, John McCone, Allen Dulles, and Richard Bissell, publicly known officials. The only clandestine services officer identified is Lucien Conein, active in plots to overthrow Ngo Dinh Diem, and by 1971 Conein was no longer with the CIA. If accurate, the assertion in the government's brief can only have referred to South Vietnamese officials who were on the CIA payroll as sources of information. Those persons, however, are referred to in thee documents in their actual Saigon government capacities and discussed taking various actions. They are not identified as CIA agents. The additional claim in the brief that currently continuing CIA operations are referred to in the Pentagon Papers can be true only in the sense that the war, including such features as pacification (which had a CIA component), or efforts to block the Ho Chi Minh Trail, and so on; itself continued.

The Griswold brief additionally claims there are "references to the activities of the National Security Agency." In fact there is a document (cited elsewhere in this paper) that refers to a number of National Security Agency personnel included in a 1961 deployment increment (15 men). There is also a statement in the text of the Pentagon Papers that covers the early (1961-1963) part of the war that the U.S. is monitoring North Vietnamese radio transmissions. But the papers have no detailed discussion of programs, methods, results, procedures, management issues, ongoing efforts, and so on. This is hardly surprising since Pentagon Papers analysts were not cleared for communications intelligence data nor was the study intended to cover this matter. That radio intelligence was a "currently continuing" activity (Griswold brief, p. 6) is correct, but in the same sense as the last point, this could convey no special knowledge to Hanoi. The North Vietnamese were aware long before 1971 that U.S. forces were listening in on their radio transmissions, and their knowledge of U.S. activities was far more detailed than anything they could learn from the Pentagon Papers.

No locations are given in the brief for material that is actually compromising in either of these areas.

Griswold Claim No. 4 (p. 6; ref to V-B4(a) pp. 249-257, 259-311)
The Griswold brief objects to the disclosure of contingency plans of the Southeast Asia Treaty Organization (SEATO), most specifically SEATO Plan 5. The SEATO plans referred to were 1961 plans for blocking the lower panhandle of Laos. Not only were these not "continuing military plans" as asserted in the brief, but they involved absurdly small numbers of troops, given the North Vietnamese dispositions in Laos in 1971, and would have led to major military debacle if implemented. More important, by 1971 the deployment of any number of U.S. troops into Laos was illegal under United States law. Here the U.S. government was in a position much like President John F. Kennedy with the New York Times revelations of CIA preparations for the Bay of Pigs invasion – the press would have been doing the government a favor by publishing the leak. In addition, the U.S. government had just finished supporting a major South Vietnamese invasion of Laos which had been roundly defeated (Lam Son 719); the assertion in the Griswold brief that there was any secret left about this option was disingenuous. Finally, by 1971 the SEATO alliance was moribund and the claim that any SEATO contingency plan might be taken off the shelf and implemented was farfetched.

Notwithstanding its claims that this material must remain secret, the United States government published it in full in its own edition of the Pentagon Papers.

Griswold Claim No. 5 (p. 6; ref to IV-C-6 p. 129)
[NOTE: Link includes excised and full versions of IV-C-6 p. 129]
The Griswold brief fears giving Russian intelligence insight into U.S. intelligence capabilities by revealing a U.S. estimate of Soviet attitudes and intentions toward the Vietnam war. In fact the Pentagon Papers quotes only one paragraph of the estimate (SNIE 11-11-67, which is not, in fact, identified in the leaked documents) which says that the Russians might send volunteers or crews for aircraft or defense equipment to Vietnam, or break off negotiations with the U.S. on various subjects. The mining or blockade of the North Vietnamese coast is predicted to challenge Russian leaders. An examination of the underlying document, the SNIE, will demonstrate that it is pitched at a similar high level of generality. The Griswold brief's assertion that the estimate "is in large part still applicable" is accurate in the sense that any simple enumeration of broad options will always contain the range of actions that are possible in a situation.

Griswold Claim No. 6 (p. 7; ref to IV-C-6(b) p. 157)
The Griswold brief asserts that the revelation of a footnote describing the judgment of the United States Intelligence Board on Russian capacity to supply various types of weapons to North Vietnam "has much about it that is current, and its disclosure . . . could lead to serious consequences for the United States." The source text is a May 19, 1967 draft memorandum from Secretary of Defense Robert McNamara to President Lyndon Johnson which contains a footnote describing the United States Intelligence Board (USIB) opinion. The "USIB estimate" is actually a reference to SNIE 11-11-67, described above. That estimate cites various kinds of weapons that Russia was capable of giving Hanoi, including artillery, aircraft, rockets, patrol boats, and so on. Again, these are in the nature of an inventory of possibilities. Neither the footnote nor the underlying intelligence estimate contains any numerical predictions whatsoever. It remains an enumeration of broad Russian options. Although Department of Defense censors deleted the offending footnote at the location cited in the Griswold brief, in their own edition of the Pentagon Papers they permitted publication of the identical note (see IV-C-7(b) page 47).

Griswold Claim No. 7 (p. 7; ref to IV-C-6(b) p. 168)
The Griswold brief asserts that disclosing that the United States ever considered a nuclear response in the event of a Chinese attack on Thailand "could have very serious consequences to the security of the United States." The document containing language about nuclear weapons use is not a Joint Chiefs of Staff memo of May 27, 1967, as cited, but JCSM 288-67, of May 20, in which the Joint Chiefs discussed U.S. worldwide military posture. This discrepancy in dates is probably a typographical error in the original legal brief. The statement about nuclear weapons arose in the context of a discussion of a U.S. invasion of Cambodia, which was illegal under U.S. law by 1971. Hanoi might counter with more forces in Laos, leading the U.S. to send extra troops to Thailand, and China to attack the Thais. All of these possibilities were exceedingly remote.

The language about nuclear weapons in the Joint Chiefs memorandum was not unusual; that is, with limited ground forces in the U.S. military, it was customary for the Joint Chiefs to invoke nuclear weapons in almost all discussions of war with China. Throughout the 1950s, during the Eisenhower administration's "New Look" national security policy, nuclear weapons were deliberately built into the contingency plans. In addition, there were four Sino-American crises during that interval, all of which involved U.S. nuclear threats against China (Korea 1953; Tachen 1954-55; Taiwan Straits 1958; Quemoy/Matsu 1960), plus the Dien Bien Phu crisis of 1954, in which nuclear weapons were brandished by the U.S. secretary of state with language about retaliation "at places and with means of our own choosing," which became known as the doctrine of massive retaliation. Almost identical language about nuclear weapons occurs in JCS and other documents in the Pentagon Papers about the earlier period which censors did not bother to delete from the government edition of the Pentagon Papers. In any case, for the Griswold brief in 1971 to argue the serious consequences of this item in the Pentagon Papers requires assuming the Chinese had paid no attention to all these events and public pronouncements by the United States. If there was damage to the national security here, this occurred long before 1971 and the Pentagon Papers were not the source of it.

Griswold Claim No. 8 (p. 7; ref to IV-C-7(b) pp. 161-163)
The Griswold brief asserts that revelation of this source material, a cable to Washington by then-ambassador to Moscow Llewellyn C. Thompson in March 1968, would impair Thompson's effectiveness and provide the Russians valuable intelligence information. The source text is Moscow cable 2983 of March 1, 1968, in which Ambassador Thompson comments on the likely Russian response to a range of U.S. options in Vietnam, things from the mining of Haiphong harbor to possible invasions of North Vietnam, Laos or Cambodia; to increasing troop levels in the South or more bombing of the North. The intelligence Russians could learn from this cable is the set of options the U.S. was considering in 1968 plus Thompson's assessments of Russian reaction. The set of options could not have been that useful because, much like the transparency of Russian options toward Hanoi for U.S. intelligence, American options had not changed since the beginning of the big unit war. Moreover, by 1971 every one of those options save the mining of Haiphong had been played out and U.S. withdrawal was accepted and publicly known policy. Llewellyn Thompson's opinions of the options were possibly useful as an index of his thinking, as an indicator the Russians could use to gauge how well Thompson had understood the Russian position in 1968, or as an indicator to the Russians that Thompson was important enough to Washington that the U.S. would share with him its most secret Vietnam plans.

None of these possibilities lends any support to the claim in the Griswold brief that publication of the cable would "impair" Thompson's effectiveness as an arms control negotiator, "which surely directly affects the security of the United States." On the contrary, publication most likely encouraged Russians to a high regard for Ambassador Thompson. In any case the entire issue was specious, through no fault of Solicitor General Griswold, because the arms control negotiations were directly run and dominated by the White House in the person of national security adviser Henry Kissinger. The Russians surely knew that; the effectiveness of Llewellyn Thompson was a false issue.

Griswold Claim No. 9 (p. 8; ref IV-C-9(b) p. 52)
The Griswold brief declares that there was a grave risk of adverse reactions from South Vietnam and Laos if the release of the Pentagon Papers revealed that they had held discussions related to possible South Vietnamese military action in Laos. The source text, in its entirety, reads: "In May talks started between Lao and GVN [i.e. South Vietnamese] military staffs. The occasion was planning for barrier extension westward, but Washington realized at once that there was little the US could do to limit the contacts to that subject." There was no explicit discussion in the Pentagon Papers of South Vietnamese action in Laos, and no evident reason the passage would be offensive, other than revealing the fact of the talks. In 1971, however, coming after the (failed) South Vietnamese invasion of Laos in Lam Son 719, the alleged problem of a breach of confidence had only academic importance.

Griswold Claim No. 10 (pp. 8-9)
The Griswold brief threatens grave damage from the revelation of communications intelligence secrets, making the enemy aware of significant U.S. intelligence successes, permitting them to assess U.S. communications intelligence capability, and to impair current military operations. This is a strange claim. To begin with the Pentagon Papers carried a "Top Secret" level of classification within the Department of Defense. By itself that classification grade usually excludes communications intelligence information, which exists in what the United States terms a "special compartmented" category and carries a separate codeword. There was no communications intelligence in the Pentagon Papers in the first place. As for directly affecting U.S. operations, the character and content of U.S. operations had completely changed between 1968 and 1971 from large-unit clearing efforts to small scale patrols in support of pacification. The specifics were all different by 1971, only the techniques remained the same, but the possibility of damage to national security is mooted by the absence of communications intelligence from the documents.

The United States Government deleted from the Washington Post’s brief commenting on the in camera evidence references to three passages in the documents, and the passages themselves, that refer to organization and administration of communications intelligence. All these references relate to the spring of 1961, when Deputy Secretary of Defense Roswell Gilpatric headed an interagency task force on Vietnam policy. The deletions occur in successive drafts of the task force report. The first is a recommendation to “Expand the current program of interception and direction finding covering Vietnamese Communist communications activities in South Vietnam, as well as North Vietnamese targets,” and asks for authority to conduct these activities on a joint basis with South Vietnamese. (The source document was declassified in 1977). The second deletion has nothing to do with communications intelligence, and recommended an additional 40 personnel for the CIA station in Saigon – for paramilitary and covert action programs. The third deletion was of a recommendation to send 15 communications intelligence specialists to Vietnam to help train South Vietnamese counterparts. No conceivable damage to the national security of the United States would have resulted from the exposure of this material, which had nothing to do with either U.S. codes or foreign codebreaking. Only the reflexive desire to keep secret all information related to intelligence could be served by deleting these items from the government edition of the Pentagon Papers. These were also exceedingly thin reasons to keep secret all forty-seven volumes of the Pentagon Papers, as was the government’s proposed remedy in this court case.

Griswold No. 11 (p. 10)
The Griswold brief mentions prisoners of war to invoke the claim that breaking the confidentiality of diplomatic communications would adversely affect negotiations to bring them home. The confidentiality of diplomacy argument is one that the Nixon administration made very strongly, bringing in diplomat William B. Macomber who made it the centerpiece of his testimony and affidavit, and even actually soliciting comments from foreign governments for use in a legal brief. These were essentially political arguments, however. A wide variety of foreign governments had made public their roles in Vietnam negotiating efforts, and even the secret give-and-take was already on the record in a variety of books and news articles. (In particular see David Kraslow and Stewart H. Loory, The Secret Search for Peace in Vietnam, and Chester Cooper, The Lost Crusade: America in Vietnam.) As we now know, moreover, the diplomatic volumes of the Pentagon Papers had never been compromised in the first place. Even if they had, in more than a thousand pages of text the diplomatic volumes have only eight references to prisoners of war. It is difficult to avoid the conclusion that the prisoner issue was incorporated into the U.S. legal brief primarily to invoke an issue that would resonate with the justices.

Special Appendix Relating to In Camera Proceedings and Sealed Exhibits Submitted by Appeallant United States, June 21, 1971

List of "Items Specified in the Special Appendix Filed on June 21, 1971 with the United States Court of Appeals for the Second Circuit"

This "Special Appendix," submitted on June 21, 1971 to the United States Court of Appeals for the Second Circuit by the U.S. government, makes a set of allegations regarding evidence drawn from the testimony of several U.S. officials who appeared in New York court hearings, followed by claims about the impact on current military operations of publication of the Pentagon Papers. The heart of this document is a list of seventeen references to Pentagon Papers material each with an explanation of how their publication would reveal secrets of great import. That the U.S. government considered this a vital part of its claim is demonstrated by the fact that Solicitor General Griswold included the same items in his "Supplemental List" to the Supreme Court and also separately submitted the "Special Appendix" document in addition to his court briefs. In this examination of the secret brief, we have identified and commented on each of the 17 items in the government's "Special Appendix" to the Second Circuit.

For each of the documents below we have reproduced the relevant passage of the Special Appendix, outlining the reasons why the government felt these specific portions of the Pentagon Papers must remain secret. With each we have also included the pages of the study, declassified by the government in 1971, to which the Appendix refers. We have made an effort to reproduce the items from the government edition of the Pentagon Papers unless the materials were so lengthy that this was not practical. Where material from the government edition appears, that means the United States Government, in its own declassification decisions made in 1971, in the immediate aftermath of the Pentagon Papers court case, did not feel the item in question was sensitive enough to keep secret. In cases where material has been deleted from the government edition, the deletion is reproduced along with the relevant page or pages of the Senator Mike Gravel edition of the Pentagon Papers so that the reader can see exactly what the deletions were.

NOTE: The first page reference for each item refers to the relevant page of the special appendix document. The next reference, for which we have provided links below, refers to the relevant portions of the Pentagon Papers. In some cases we have used pages from the Senator Gravel edition of the study for reasons of space, and because that version was published without excisions.

Part I, No. 1 (p. 10; IV-C-7(a) et. seq.)
The Special Appendix asserts that this discussion of Joint Chiefs of Staff recommendations for bombing North Vietnam in 1967 reveals "sensitive details about current contingency plans," including numbers of sorties required for mining major ports, cutting lines of communications to China and destroying bridges. The source document is a portion of the Pentagon Papers that describes JCS views as of July 2, 1967. The only number that appears in the text is the statement that an increase of 3,000 sorties per month (from 2,000 to 5,000) would be needed to carry out the air campaign therein considered. This gross figure in no way conveys the kind of information suggested by the legal brief. Similarly, ports, bridges, lines of communication, etc. are simply mentioned; there is no detail, sensitive or otherwise, in the document. Department of Defense censors did not even see fit to delete this material from the government edition.

Part I, No. 2 (p. 10; ref IV-C-6, p. 52)
The Special Appendix declares that this passage, which cites CIA and Pacific Command estimates of North Vietnamese and NLF strength in the South in 1966 would permit the adversary to evaluate the accuracy of U.S. intelligence and "draw conclusions on the extent to which he was capable of avoiding detection in combat situations." The 1966 estimates were detailed in the Pentagon Papers, but they were like a snapshot at a given point in time. By 1971 the estimates were quite out of date. Most important, the conclusion in the Special Appendix does not follow from the data cited. The estimates were strategic ones, order of battle material. In a tactical combat situation the ability to avoid detection has nothing to do with strategic intelligence estimates. Department of Defense censors did not bother to delete this information from the government edition.

Part I, No. 3 (p. 10; ref IV-B-3 Chronology et. seq.)
The Special Appendix cites these detailed chronologies of U.S. activities and decisionmaking on Vietnam as providing insight into the U.S. decisionmaking process and reaction times. In fact the chronologies are prime examples of the opposite of what government lawyers wished to demonstrate – they were of great historical value but of little current moment. Hanoi, Moscow, Beijing, and everyone else dealing with Washington was well aware the entire action system in the U.S. had changed with the advent of the Nixon administration. Department of Defense censors did not bother to delete these materials from the government edition.

Part I, No. 4 (pp. 10-11; IV-C4 pp. vii et. seq.)
The Special Appendix, as well as several affidavits and government officials in their testimony made much of this material, which in their view "exposes two major military operational plans . . used in 1964 and 1965." This information combined with other intelligence, in this view, could "seriously compromise current war planning for Southeast Asia." Examination of the relevant passages cited will show that the Pentagon Papers did no more than to identify the two plans (OPLAN 32-64, OPLAN 39-65) and discuss how the initial appearance of U.S. combat troops in South Vietnam conformed to their provisions. The documents contain no overall description of the plans, no detail on what forces might be involved or available to the overall package, no detail on planning provisions of sequencing and movement of forces, no detail on the bases or means involved, and so on. An adversary planner looking at this could not do much of anything. Again, the passages were of principal value to historians.

Part I, No. 5 (p. 11; ref IV-C-10)
The Special Appendix claimed that this information, a set of statistics, could provide the adversary with a basis for measuring, and thereby countering, the U.S. and third country/South Vietnamese war effort. In fact the set of statistics covered only the years 1965 to 1967 and had no relevance to the Vietnam war in 1971. The various measures in the tables were of the same sorts military officials trotted out at congressional hearings and press conferences to argue that progress was being made in Vietnam. Department of Defense censors did not bother to delete these materials from the government edition of the Pentagon Papers. Editors at Beacon Press preparing the Senator Mike Gravel Edition found this material of so little interest they did not include it.

Part I, No. 6 (p. 11; ref V-B-4 pp. 313-320)
The Special Appendix notes that this passage "contains a special national intelligence estimate" and makes no specific claim of damage to the national security. The underlying material is an October 1961 estimate (SNIE 10-3-61) projecting anticipated Russian and Chinese reactions if SEATO forces intervened in South Vietnam. Aside from the fact that the Vietnam war had been totally transformed between 1961 and 1971, making the intelligence report wholly irrelevant, by 1971 there was no prospect whatever of SEATO intervention in South Vietnam. The document was of historical, not current operational, interest. Department of Defense censors chose to delete only a few lines from one paragraph of the seven page paper when printing  it in the government edition.

Part I, No. 7 (p. 11; ref V-B-4 pp. 295-311)
The Special Appendix claims that these pages "reveal aspects of SEATO contingency war plans and relationships that are still in effect" and could reveal to the adversary "the limited costs of an all out effort [on his part] to take all of Southeast Asia." The documents in question are an October 9, 1961 Joint Chiefs of Staff memorandum recommending intervention in Laos under SEATO Plan 5, and a memo the next day from William P. Bundy to Robert McNamara reflecting on his Indochina experience since 1954 and agreeing with the intervention recommendation. Both documents are of prime historical significance, but neither had anything to do with the situation in Indochina in 1971. Indeed, if SEATO Plan 5 was an active plan to be implemented in 1971 that would have been suicidal: the plan called for a total of 22,800 troops under multinational command (with all the problems that entailed) against North Vietnamese forces in excess of 70,000. Moreover, in the wake of the defeat of the South Vietnamese invasion of Laos in February-March 1971 (Lam Son 719) there was zero chance of implementation for anything like the schemes at issue here. Department of Defense censors deleted no more than occasional words from the versions printed in the government edition.

Part I, No. 8 (p. 11; ref. IV-C-5 pp. 11-32 et. seq.)
The Special Appendix already tried to use this material to justify maintaining secrecy of the Pentagon Papers in the action discussed above as Part I, No. 3.

Part I, No. 9 (p. 12; ref. VI-C-4 pp. 21-22)
The Special Appendix asserts that a direct quote of a Saigon embassy message "would assist the enemy in analyzing and possibly breaking codes employed at that time." Unfortunately examination of the underlying document shows that the cited pages do not in fact contain any of the material claimed by the legal brief. However, on the general question of codebreaking, the Special Appendix is making the unstated assumption that the Russians (and any other interested actors) have in fact intercepted the coded version of the cited text with which to compare – not a surety – and that a break of one message would have compromised all traffic. The latter is also less likely in the era of machine codes. In any case the claim was specious since the capture in 1968 off Korea of the U.S. Navy spy ship Pueblo compromised the encryption machinery, forcing the United States, to change machines. By 1971 this old coded traffic would have been merely academic. In any case, Department of Defense censors did not bother to delete this material from the government edition.

Part I, No. 10 (p. 12; ref. VI-C-4, pp. 1-2 Ohio)
The Special Appendix makes the same claim as with the previous item. The same arguments against the government’s claims apply. The legal brief extends its claim to include "many similar examples" of other cables interspersed throughout the volume. It is worth noting that declassifiers who released this material under the Freedom of Information Act in 1978 left in the vast majority of the plain texts of diplomatic cables among the 99 percent or more of the contents of the negotiating volumes which were released. In all likelihood this cable was redacted from the declassified version precisely because it had been made the subject of a claim in this prior restraint case.


GENERAL NOTE: In all the preceding items from the Special Appendix the overarching claim by the United States Government was that disclosure of the materials would threaten current U.S. military operations and "present increased risks to the safety of U.S. forces." For the next set of items the general claim is that disclosure of these "would slow the U.S. program of shifting military responsibility in Vietnam to South Vietnamese forces."


Part II, No. 1 (p. 12; ref. IV-C-8 pages i-viii et. seq.)
The Special Appendix claims that disclosure of these materials on the pacification program would "endanger the essential Government of Vietnam interest" and support of the program by revealing U.S. overparticipation, documenting friction and U.S. efforts to exert influence on Saigon, revealing criticisms of Saigon, including charges of corruption, incompetence, and more on the part of prominent Vietnamese. The most important point is that there was nothing secret about any of the materials here. Charges of corruption and the rest were public, not only in press accounts but in congressional hearings, press briefings by the U.S. Government, speeches by senior officials, and public releases by the Embassy in Saigon, the State Department and others. In addition, the substantive content of these passages actually concerns the period 1964-65, which by 1971 were far into the past. As far as the danger of the Saigon government losing interest in pacification was concerned, that program remained one of its central functions; losing interest in pacification meant giving up the war and accepting defeat. There was no likelihood of that happening. Meanwhile, the Saigon government itself had major task forces and other initiatives underway against corruption, and revelation of related charges in the Pentagon Papers was not going to be any surprise. Department of Defense censors saw no reason to delete any of this material from the government edition.

Part II, No. 2 (p. 13; ref. IV-C-9(a) et. seq.)
The Special Appendix charges that these volumes, which detail U.S. relations with the Saigon government, had to be secret because "public revelation of the extent to which the U.S. has criticized Vietnamese efforts . . . would make all facets of relations with the South Vietnamese more complicated." As in the discussion of the preceding item, the issues in these volumes were matters of public knowledge on issues which the Saigon government could not, in fact, walk away from. Moreover, the emerging declassified record of the Nixon administration shows that the factors complicating U.S.-South Vietnamese relations in 1971 were not the ones in the Pentagon Papers but Saigon's fears that its interests were being sold out by the Nixon administration in its peace negotiations with Hanoi, to which the Pentagon Papers were irrelevant. Department of Defense censors saw no need to delete this material from the government edition (the version reproduced here is taken from the Senator Mike Gravel edition simply because it is typeset and consumes less space).

Part II, No. 3 (p. 14; ref IV-C-6(c))
The Special Appendix declares that this material, which describes the Washington policy review following the 1968 Tet Offensive, "could have a decidedly detrimental impact upon the present Vietnamization program" and would give aid and comfort to potential enemies. As a description of mechanisms for U.S. decisionmaking this 1968 volume had clearly been superceded by the changeover from the Johnson administration to that of Richard Nixon. The account of post-Tet decisions on troop levels was detailed, but overtaken by the event of the U.S. withdrawal from South Vietnam which, by the time of the Pentagon Papers case, had been underway for almost two years. The matter of aid and  comfort to enemies was subject to interpretation. In any case, Department of Defense censors chose to make only two minor deletions from this entire volume in the government edition (the version reproduced here is taken from the Gravel edition for reasons of space).

Part II, No. 4 (p. 14; ref IV-C-9(b) Part II)
The Special Appendix here repeats claims to delete material already made the subject of demands listed above. See the analysis for Part II, Nos. 1 and 2.

Part II, No. 5 (p. NA; ref IV-C7(b) pp. 161-63)
This item was also emphasized by Solicitor General Griswold in his secret brief to the Supreme Court. See the discussion of Griswold No. 8.

Part II, No. 6 (p. NA, ref IV-C-3 pp. 77-82)
The declassified portions of the Special Appendix contain no argumentation as to why the presence of this material in the Pentagon Papers should justify keeping secret the entire history. The referenced material is an account of military plans for the conduct of the original air campaign against North Vietnam (codenamed Rolling Thunder) that began in February-March 1965 and was expected to last for twelve weeks. By 1971 that account was mostly useful to historians. Department of Defense censors saw no reason to delete any of this material from the government edition.

Part II, No. 7 (p.NA; refs VI-C-2 pp. 1-18)
Again the declassified portions of the Special Appendix contain no argumentation as to why the presence of this material in the Pentagon Papers should justify prior restraint of the entire document. The referenced material contains an account of the Tonkin Gulf affair and military pressures against North Vietnam during 1964. The material was politically sensitive in that the veracity of the government's account of the Tonkin Gulf affair was in doubt by 1971, and the document showed both that U.S./South Vietnamese covert raids on the Vietnamese coast had immediately preceded both alleged incidents in the Tonkin Gulf (the U.S. government was maintaining there had been no provocations); and also that as of the time of writing of the Pentagon Papers (1967-68) it was still not possible for an analyst working inside government to say on paper that the second alleged North Vietnamese attack, which is now believed never to have taken place, was anything other than a real incident. Political sensitivity is not damage to national security and is not valid justification for classification of documents. The material had no relevance to conduct of the Vietnam war in 1971. Department of Defense censors did not delete a single word of this account from the government edition.

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