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Heresy in Los Angeles

Since it began, the Pentagon Papers trial of Daniel Ellsberg and Anthony J. Russo, Jr., has seemed to those of us who have been watching it partly a trial for heresy, partly an obscenity trial—an inquisition into the meaning, use, and control of a sacred, unspeakable text, represented in this instance by a plain brown carton that often sits on a table in front of the government prosecutor, David R. Nissen: twenty Xeroxed volumes of the forty-seven-volume history of the Vietnam war. Both the government and the defendants are obsessed with that carton, which has become a kind of a totem of the age of information.

Ellsberg’s work in the Pentagon and at the Rand Corporation in the days before his famous conversion was characterized by nothing so much as a search for some final understanding of how power works, how decisions are made, where the deepest secrets lie. During his days in the government, he has often said, he was shown military plans for general war whose very existence was hidden by the Joint Chiefs of Staff from the President and the Secretary of Defense. It was as if he were speaking of being in the holy place of an obscene cult.

Inevitably, the testimony during the first weeks in Los Angeles was about the mystery of the Papers, the magical powers they gave to those who read them. The larger issues—restrictions on the First Amendment, the use of the classification system, and government control of information—were hardly mentioned. The government’s witnesses summoned up for the jury a hypothetical “foreign analyst” who they claimed would have enjoyed an “intelligence windfall” if the Papers had fallen into his hands. They described a hypothetical foreign government which would have been able to sabotage secret negotiations between Washington and Hanoi after reading what Ellsberg had given the Times. Then there was a hypothetical North Vietnamese general who, they argued, could have assessed hypothetical plans for the phased withdrawal of 500,000 troops in 1969—the year the Papers were copied and when Ellsberg’s alleged crime began—by studying a discarded proposal for the removal of 16,000 troops in 1964.

The government’s first witnesses, a pair of military officers testifying as experts on the damage that disclosure of the Papers might have caused the United States, deluged the jury with acronyms, code names, and portentous suggestions of clandestine intelligence operations—two weeks of cloak and dagger stuff—yet they undoubtedly scored a point: if a foreign government knew what we knew (or if they knew what we knew about what they knew) it might be in a better position to direct its counterintelligence activities, understand our intelligence system, and plan more carefully in the future. But it was not the actual information in the Papers that was of particular military importance; even if a great deal of that had already been published, as the defense showed, the range of those documents, their origins, and the Top Secret classification stamp would make them of some importance to the “foreign analyst.” This was not a case of a trickle, or of leaked stories attributed to an anonymous “Pentagon source,” or of a hint by an unreliable columnist. This was the Real Thing.

It was the government itself, of course, that had made it so. The defense could insist that the documents were improperly classified—and that improper classification was not classification at all; it could show that most of the information in the documents could have been pieced together by someone in the New York Public Library. But it was still true that the label “Top Secret” would “heighten the interest” of that hypothetical foreign analyst. After all, it had heightened the interest of Daniel Ellsberg and the editors of the Times, and they in turn had hoped that the “secret” papers would impress the public, embarrass the government, end the war. The Papers were “an authoritative survey of the war in Vietnam,” as one of the government experts testified, “labeled with the highest classification that this government has.” Whatever the applicable law, it was the government that had made these documents into the holy secrets of the secular state.

The formal charges against Ellsberg and Russo—conspiracy, conversion (misappropriation) of government property, and violations of the Espionage Act—relate only to the copying of the Papers in 1969 and not to their publication in the newspapers in 1971, yet it is obviously their disclosure that prompted the prosecution. In 1969 and 1970 the FBI had investigated Ellsberg’s activities and probably knew that he was copying the documents, but the Justice Department never pressed a case. Russo, like Ellsberg a former Rand employee, is fond of saying that he is really the government’s surrogate for the Times, that he is the personification of the American press (in this instance as a receiver of stolen goods). In effect, Ellsberg and Russo are inviting the journalists in Los Angeles to regard themselves as unnamed codefendants in the case. And they are right to do so.

Few people, including Ellsberg, understood before this trial that the US has nothing like the British Official Secrets Act. The classification system exists only by executive order, not by congressional legislation. The catchall provision of the Espionage Act under which Ellsberg is indicted outlaws the disclosure of “information relating to the national defense” by a person who “has reason to believe it could be used to the injury of the US or the advantage of any foreign nation.” But until Ellsberg’s trial this act had been applied only to information passed to foreign agents. If Ellsberg and Russo are convicted, if the Espionage Act can be extended to leaks to newspapers, and if the government is judged to have a legitimate right to rigidly control information (either by stamping it secret or simply possessing the physical documents on which it appears), then we could have what amounts to an unlegislated official secrets act. Practically any government official who leaked anything could theoretically be prosecuted for “conversion” or espionage or for conspiracy to “defraud” the US by “impairing…its governmental function of controlling dissemination” of classified government material. Any writer who published such a leak could be called before a grand jury and forced, under the Caldwell case precedent, to divulge his source; and he could be indicted as a conspirator or a receiver of stolen government property.

But notwithstanding the threat to the free press, I suspect that the trial is seen largely as a sectarian struggle between the government and a handful of liberal intellectuals who had an almost absolute faith in the power of the Word to change the country. After all, did most people really care? How many read the Papers when they were published? Who could fully sympathize with Ellsberg’s statement that he never tired of reading the Papers or that he had not had one waking hour in the last eight years when he hadn’t thought about Vietnam? Weren’t those statements almost as disturbing as some of the disclosures in the Papers themselves? Who would want to be such an enthusiastic voyeur of power?

The very first prosecution witness, an assistant general counsel in the Defense Department named Frank Bartimo, identified himself as the official custodian of the carton. Bartimo then inadvertently opened the door to a trial-within-the-trial (complete with another set of leaked documents) which demonstrated that the government had systematically been suppressing evidence, deceiving the judge, and losing its memory on the stand with the deftness of a Mafioso testifying before a congressional committee.

The judge, following Supreme Court precedents, had ordered the prosecution to turn over to the defense any “damage reports” which showed that little or no damage had been done to the national defense as well as any other exculpatory evidence indicating the defendants’ innocence. No such material had ever been supplied, and Nissen repeatedly told Judge William “Matt” Byrne, Jr., who, as a former US attorney in Los Angeles, had once been Nissen’s boss, that the government had none.

But under cross-examination by the defense, Bartimo admitted that the government had produced damage reports—studies or analyses of possible injury to the United States resulting from disclosure of the Papers—and that the nonexculpatory material which Nissen had submitted to the court in camera was not the material he was talking about. For two weeks, while the jury was listening to government experts discussing possible “injury to the United States,” Byrne conducted a separate inquiry, which the jury was not allowed to hear, to determine whether his orders had been violated and to find out what the government had withheld.

Some of the exculpatory material, it turned out, had been in Nissen’s own files for nearly a year. Officials in the Defense and State Departments had written, specifically for the prosecution of this case, damage reports indicating that at least half the volumes of the Pentagon Papers named in the indictment contained little that hadn’t been previously published or that could be useful to a foreign government. Examples:

It is therefore not possible to identify material in the Gurtov study [an analysis of the Geneva accords of 1954] which, in 1969, related to the national defense or would have caused injury to the United States if disclosed.

Taken as they are from U.S. documents for the early 1950s, these and similar statements printed in this volume did not, it is felt, adversely affect in any significant way U.S. national defense in 1969, nor do they today.

Despite fairly extensive use of intelligence reports and classified DOD and State Department cables, disclosure of the information presented in this volume would not have affected national defense interests as of 1969 or today.

Compromise of this volume does not affect…national defense interests.

DOD review of this volume does not show that its compromise would affect in any way national defense interests in 1969 or today.

Since virtually all the information presented in this volume has been in the public domain prior to 1969, it would be difficult, if not impossible, to assess the contents of this volume as having any effect whatsoever on national defense as of 1969.

But Nissen told Byrne that the material he had concealed was not covered by the court’s order, could not be defined as “damage reports,” and represented only “one man’s opinion.”

You don’t think that an expert witness who says a document would not affect national defense isn’t exculpatory?” Byrne asked him, his ruddy face getting redder.

I not only don’t think so,” Nissen answered, “I know so.”

That was only the beginning. The defense had known for months—through a leak from the man who had produced them—that there existed yet another set of exculpatory reports. It had also learned that their author, Lt. Col. Edward A. Miller, who had recently retired from the Air Force, believed that someone higher up in the Defense Department had ordered his reports removed from the files. Other DOD officials, among them J. Fred Buzhardt, general counsel for DOD, and Charles Hinkle, the head of the Office of Security Review, emphatically denied that this was true. Then the following exchange occurred.

Byrne: Do you know of any such instructions [to remove the Miller reports from the files]?

Hinkle: I don’t recall. I don’t recall any such instructions.

Charles Nesson (one of Ellsberg’s attorneys): Can you be any more definite than that you don’t recall?

Hinkle: I don’t have a very clear recollection.

Leonard Weinglass (chief attorney for Russo): Do you deny that Mr. Friedheim [Jerry Friedheim, then deputy director of the Pentagon’s Office of Public Affairs] ever gave such instructions?

Hinkle: I don’t recall….

Weinglass: Do you deny that Secretary Laird ever gave such instructions…? Do you deny that President Nixon ever gave such instructions?

Nissen: Objection, your honor.

Weinglass: I want to see how far we have to go….

Byrne: You’ve gone far enough.

Weinglass: Would you say [such a thing] had never occurred [in your nineteen years at DOD]?

Hinkle: I have no recollection.

Weinglass: Do you deny writing in longhand or dictating to your secretary a memorandum [concerning removal of the Miller reports from the files]?

Hinkle: I have no such recollection….

Miller’s own testimony on the removal of his reports from the files was often unclear; he had seen a memo that Hinkle had written outlining the instructions allegedly given by Friedheim, but Miller was never certain when he had last seen the memo or whether he himself had ever possessed a copy. What is clear, however, is that Byrne’s orders to the government to search the records of the Departments of Defense and State for exculpatory material had been sabotaged by bureaucratic evasion, deliberate misinterpretation, and, possibly, outright lies. During the course of Byrne’s inquiry, batch after batch of material by government analysts appeared—memos, studies, and reports about the effects of the disclosure of the Papers, some of them considered so sensitive by the government that they had to be flown to Los Angeles from Washington on a special military plane and delivered by courier.

These analyses made it clear that it had never been the information in the Papers that had been most sensitive—certainly not the military information, and perhaps not even the information that was most embarrassing politically. It had been, all along, the principle of secrecy itself. For Ellsberg had upset the delicate balance that had been maintained for years between rigid adherence to the classification system and its flagrant violation. Discreet leaks of information had always been common practice in Washington, but the release of 7,000 pages of material calling the Vietnam war itself into question was something else. The government’s attempts to conceal the exculpatory analyses seemed designed not only to withhold evidence that might damage its case but, more significantly, to reassert the general power of the state to control information.

When Nissen told Byrne that the exculpatory reports were merely “one man’s opinion,” he was in effect arguing that the government which had created the secrets could also determine their use and in what way the country could be damaged by them. It did not matter that the government itself had piles of its own reports showing that much of the information in the Papers was not really secret or damaging. The defense, of course, would never have been able to prove the stuff existed had it not been for Miller’s leak. The Pentagon Papers in miniature.

The classification system—the system of secrecy—is obviously on trial. Since almost every nation has some sort of official secrets act (or worse), most of the foreign reporters who cover the proceedings in Los Angeles either have a hard time understanding the issues or simply feel that the defendants must be guilty of something. (Could it be true that Ellsberg was guilty only of violating his private contract with the Rand Corporation and that, if he hadn’t quite, he could only have been punished by being fired?) The United States, as I’ve said, has no official secrets law, although certain specific kinds of information—codes and atomic energy information, for example—are specifically protected by statute. More significantly, the foreign reporters seem to share the belief of the prosecution that disclosure of data regarding foreign negotiations can, at the very least, be diplomatically embarrassing, an argument that the Nixon Administration has made with increasing frequency in recent months.

All governments lie, but the Papers show how irrational and brutal war was carried out by a government that lied flagrantly about it for years. The government must now lie all the more as it combines grandiose secret diplomacy and military threats to make that war disappear from public view. More and more, we may expect that “national defense” or “national security” will be used as all-encompassing principles for which the government will try to claim broad constitutional sanction. The foreign reporters and, alas, many Americans do not understand how radical and intentionally risky are the traditional constitutional principles guaranteeing freedom to the press and huge powers to the Congress—a branch of government that must itself heavily rely on leaks, which is one reason why it has never passed an official secrets act.

The defense in Los Angeles tried to impeach the expertise of one of the government’s witnesses, Brig. Gen. Paul F. Gorman, by showing that he knew little about foreign affairs—he had read books recently, he testified, on the Crimean War, World War I, and Chinese warfare before the birth of Christ—but I’m not certain that his limitations were apparent or relevant to the jury. He was, after all, a career military officer with a couple of university degrees—“I am a soldier,” he answered when he was asked his profession—and became therefore an authority on what the public can know.

Beyond these considerations, however, the trial in Los Angeles is raising even larger questions not only about the connection between public information and government power but about how much the public wants to know. The defense wants, above all, to “educate” the jury and the public about the origins of the war in Vietnam and the impact of secrecy on public policy. Yet it seems possible that—regardless of the verdict—the Papers, with their endless memos, estimates, and jargon will do nothing so much as convince the jurors and most other people that the whole matter was too complex, far beyond the means of the average person to understand, and that it had better be left in the hands of experts.

Secrecy, after all, was not something that had been forcibly imposed on an unwilling nation by imperious bureaucrats or politicians trying to hide their mistakes, but rather was created through default by people—like many of the jurors in Los Angeles—who read little, remember little, and seem to have few strong opinions, people too busy or harassed in their own lives to become involved. (“I just work in my shop,” one venireman said repeatedly when he was asked if he saw a daily newspaper.)

The nice thing about secrecy is that it is a way of getting dirty work done without anyone having to take the responsibility. How had the country reacted to Mylai or to General Lavelle’s unauthorized bombing raids over North Vietnam, to the killing of thousands of civilians in the Phoenix program? Ellsberg himself used to speak of a “need not to know”—the Pentagon planners’ need not to know, the Congress’s need not to know about the effects of American policy on the land and people of Vietnam. If the country were to get an official secrets act, who but a handful of scholars, journalists, and civil libertarians would really care? The country voted overwhelmingly for the man who did most of the bombing in Vietnam and who promoted the campaign to curb the press, “balance” the news; and compel journalists to reveal their sources.

If there is a need not to know, it corresponds to the passion to create secrets, even when secrets seem to contain nothing shameful. Ellsberg has often talked about the kicks that bureaucrats get from simply knowing they are privy to classified data, and his observation coincides perfectly with the impression created (at least on me) by Gorman and Lt. Gen. William DePuy, the other government expert. They believed not simply in information but more particularly in the status that classification gave the information. They seemed to suggest that the innocuous was elevated to the secret not merely for the purpose of hiding bureaucratic mistakes or manipulating public opinion—something which the Papers show was an accepted practice in planning Vietnam policy—but for the illusion of omniscience it helped to create.

Ordinary public information is not worth considering, for it is not even real information; it becomes valuable only when it is created by the government and consecrated by classification. Everything in the Papers might be public knowledge, but that did not, in the view of the experts, reduce the sensitivity of the documents. A priesthood of bureaucrats can be created by stamping the work of bureaucracy secret, and as the world becomes more complex there is an increasing need for priests. Why should citizens want to engage in theological disputes? There were, of course, no ultimate secrets, in spite of Ellsberg’s search; there were only higher degrees of secrecy.

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