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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