Issue 62, Summer 1996

Excerpted from an article by Max Frankel
The New York Times Magazine
June 16, 1996

Twenty-five years ago today, reporters, editors and owners of The Times stood accused in Federal court of treasonous defiance of the United States. We had begun to publish a 10-part series about the Pentagon Papers, a 7,000-page study of how four Administrations became entrapped in Vietnam — progressively more committed and more frustrated than they dared at every stage to admit to the public. Although the documents were historical and lacking any operational value, they were stamped “Top Secret” and therefore withheld, like trillions of other Government papers, from public, press, Congress and even Executive officials not duly “cleared” into the priesthood of “national security.”

We now know that President Nixon at first enjoyed this enormous leak. The papers covered none of his actions; they mostly belabored his Democratic predecessors, Kennedy and Johnson. Indeed, the scoop inspired Nixon to search the files for other secrets that he could leak to sully Democrats during his re-election campaign.

But Henry Kissinger, the champion leaker of his generation, soon reminded Nixon that even harmless secrets were coins of power to be hoarded. As Kissinger and Nixon intended imminently to prove in furtive negotiations with North Vietnam and China, the bigger a secret the greater its ultimate value. They kept secrets even from the Secretaries of State and Defense. Kissinger quickly persuaded Nixon not only to prosecute the leaking of the Pentagon Papers but also to battle in court to censor The Times before it could print any more of them.

So the courts stopped our presses to consider the claim that we were doing “grave and irreparable harm to the nation’s security.” No such censorship had ever been deemed legal under the First Amendment, but this case inspired frenzied, ominous charges. We were violating the Espionage Act — in wartime. Compromising intelligence sources. Inducing, receiving and rewarding the theft of Government property. Delaying, perhaps derailing, efforts to end the war.

In just two weeks, the case reached the Supreme Court, which decided, with nine separate opinions, that the Government failed to meet its “heavy burden” of proof. Six justices voted to lift the ban, though some most reluctantly; three wanted us gagged for months of more argument. . . .

As the prosecutors of the case confessed decades later, no damage was done. No military battles were lost. The national security bureaucracy had fought not to protect information from aliens but to enlarge its authority to deny information from Americans.

Yet some of the wisest judges of the case failed to understand that the same kinds of secrets as those found in the Pentagon Papers routinely appear in Presidential memoirs, in manipulative “background” briefings of the press and in competitions for appropriations. Nor do many people understand that a secret once lost is a secret no longer. When The Times was silenced, The Washington Post and a dozen other papers found the papers . . . .

So time has not hallowed this great case. The American press bears some of the blame. It has failed to use its reaffirmed freedom to pursue many other secrets — secrets that hide bloat, error and corruption in the military and intelligence agencies.

Presidents have come and gone, promising to clean out the paper attics and limit the supply of rubber stamps. All have failed to define the few temporary confidences really needed to conduct foreign policy and to expose everything else to sunlight. A new look at the problem has been promised by the Commission on Protecting and Reducing Government Secrecy, with Senator Moynihan as its skeptical chairman. He recalls that one Pentagon task force on secrecy actually concluded, one year before the leak of the papers, that “more might be gained than lost if our nation were to adopt — unilaterally, if necessary — a policy of complete openness in all areas of information.”

Yet five million new papers are stamped secret every year and more than three million Americans have been elaborately investigated and cleared for reading Confidential, Secret or Top Secret information.

Judges, meanwhile, have enlarged their own bureaucratic stake in secrets. To promote efficiency — but certainly not justice — they lock up more and more papers about pretrial discovery and financial settlements, thus denying information to other injured parties. When Business Week obtained a few such secrets of corporate fraud last year, it was censored for three weeks and dragged through months of litigation before it could shake off a judge’s vindictive charge of illegal conduct.

Moynihan argues that . . . only if secrecy orders had to be justified on a cost-benefit basis, like other regulations, would their authors be held accountable and restrained. And entire cold war agencies devoted to secrecy, like the C.I.A., would be sensibly shrunken and not allowed to dream up new functions like business espionage and drug interdiction. Although press and public won the battle of the Pentagon Papers in 1971, they are still losing the Information War.