Sometime in the early spring of 1971 we had begun hearing rumors that the New York Times was working on a “blockbuster,” an exclusive that would blow us out of the water. News like this produces a very uncomfortable feeling inside an editor’s stomach. Getting beaten on a story is bad enough, but waiting to get beaten on a story is unbearable.
We heard the Times had a special task force at work on its blockbuster. We heard the task force was working in special offices away from the newspaper’s 43rd Street offices. But we never found out who was part of the task force, much less what they were taskforcing about.
And there was so much news in Washington, we were having trouble keeping up with it all. On May Day the city hosted yet another in a growing number of anti-Vietnam demonstrations. Post reporters described Day One in West Potomac Park this way: “. . . at dawn’s light . . . about 45,000 people were dancing, nodding their heads to music, making love, drinking wine and smoking pot.” More than twelve thousand demonstrators were arrested—a record seven thousand on a single day. Downtown reeked of tear gas. Helicopters chop-chop-chopped across the city at tree-level day and night, a strange new addition to the capital scene.
At the beginning of June, we paused for a few days to focus on Tricia Nixon’s wedding to Edward Cox. The Nixons had refused to accredit Post reporter Judith Martin to cover the White House on the wedding day. They didn’t like Post reporters in general, but they particularly did not like stories she had written about the family. Any other reporter, but not Judy, we were told. And because we weren’t about to let the White House—much less the Nixon White House—tell us who could or could not cover any story, we insisted on assigning Ms. Martin. We covered it from the TV tubes—and nobody but us gave a damn.
On Sunday, June 13, 1971, the top half of the Post’s page one was devoted to the White House wedding, but the top half of the New York Times revealed at last what their long-awaited blockbuster was all about: Six full pages of news stories and top-secret documents, based on a 47-volume, 7,000-page study, “History of U.S. Decision-Making Process on Vietnam Policy, 1945-1967.” The Times had obtained a copy of the study, and had assigned more than a dozen top reporters and editors to digest it for three months, and write dozens of articles.
The Post did not have a copy, and we found ourselves in the humiliating position of having to rewrite the competition. Every other paragraph of the Post story had to include some form of the words “according to the New York Times,” blood—visible only to us—on every word.
On Monday, June 14, the next installment of the Pentagon Papers appeared in the Times: “Vietnam Archive: A Consensus to Bomb Developed Before ’64 Election, Study Says.”
While candidate Goldwater was calling for the immediate bombing of North Vietnam, the story said, the Johnson administration had privately concluded two months before the election that he was right. The sustained bombing—known as Rolling Thunder—began three months after the election.
At the Post we had gone to General Quarters, and were trying desperately to get our own copy of the Pentagon Papers, or any reasonable substitute, and getting on with the job of rewriting the Times’s Monday story for our Tuesday paper. At breakfast Monday morning, my friend Marcus Raskin, a former member of Kennedy’s National Security Council, and then a part of the leftist Institute of Policy Studies (IPS), offered me the manuscript of a book by IPS scholars, “Washington Plans an Aggressive War,” which he said was “based on” the Pentagon Papers, and which had been written after “access” to the Pentagon Papers, whatever that meant. We were so far behind the Times, I expressed an interest, but the manuscript was a polemic against the war, and it carried only the quotes from the papers that served the cause. We read it with interest, but felt it was a poor substitute for the real thing.
Phil Geyelin had a friend in Boston who offered him what was described as two hundred pages of excerpts from the Pentagon Papers. That is apparently exactly what they were, but we had no idea of their context, and before we could get any idea, the substance of those two hundred pages showed up in the New York Times’s third installment, on Tuesday, June 15: “Vietnam Archive: Study Tells How Johnson Secretly Opened Way to Ground Combat.” We were going out of our minds, especially when we read that U.S. Attorney General John Mitchell had sent a telegram to the Times asking them to cease publishing anything from the Pentagon Papers, and to return all documents to the Defense Department.
That same Tuesday, the Justice Department went to court and got an injunction against the Times, restraining a newspaper in advance from publishing specific articles, for the first time in the history of the republic. At least the New York Times had been silenced, never mind how.
Wednesday night, the Post’s thorny National editor, Ben Bagdikian, was contacted by someone and given a telephone number, to be called only from a pay telephone, where he could reach his friend, Daniel Ellsberg.
Dan Ellsberg was a zealous Harvard intellectual, who had served voluntarily for two years in the Marine Corps before becoming a defense research expert for the Rand Corporation. He had volunteered for Vietnam, where he served as an “apprentice” to General Edward Lansdale. He had seen plenty of action in the Mekong Delta in 1965 and 1966, and actively supported the American pursuit of the war, until he returned in early 1969 to Rand, where he had been a colleague of Bagdikian’s.
Ellsberg was also the source of the New York Times’s 7,000-page copy of the Pentagon Papers, because of his friendship with and respect for the Times’s legendary Vietnam reporter, Neil Sheehan.
Late Wednesday, the 16th, Bagdikian flew to Boston, and first thing Thursday morning, he flew back with two first-class seats, one for himself and one for a large cardboard carton full of Pentagon Papers. The Post’s package consisted of something over 4,000 pages of Pentagon documents, compared to the 7,000 received by the New York Times. At 10:30 A.M., Thursday, June 17, Bagdikian rushed past Marina Bradlee, age ten, tending her lemonade stand outside our house in Georgetown, and we were back in business.
For the next twelve hours, the Bradlee library on N Street served as a remote newsroom, where editors and reporters started sorting, reading, and annotating 4,400 pages, and the Bradlee living room served as a legal office, where lawyers and newspaper executives started the most basic discussions about the duty and right of a newspaper to publish, and the government’s right to prevent that publication, on national security grounds, or on any grounds at all. For those twelve hours, I went from one room to the other, getting a sense of the story in one place, and a sense of the mood of the lawyers in the other.
With the Times silenced by the Federal Court in New York, we decided almost immediately that we would publish a story the next morning, Friday, the 18th, completing in twelve hours what it had taken the New York Times more than three months to do. For planning purposes, we had to take that decision so that we could re-thread the presses to include four extra, unplanned pages . . . an operation that cannot be done on the spur of the moment. At 4:00 P.M., we stopped reading and arguing to hold a story conference, to talk out what we had, and what we could get written and laid out in the five hours left before the first edition deadline. Our first choice was a piece to be written by diplomatic correspondent Murrey Marder about how the Johnson administration had stopped and restarted bombing North Vietnam to influence American public opinion, not to further U.S. military goals. But Murrey, one of the world’s most thorough reporters, was also one of the slower writers. As a precaution, Chal Roberts started on a story about U.S. diplomatic strategy in Vietnam under the Eisenhower administration. Chal had the fastest typewriter in the business, and we knew he’d get it done. Don Oberdorfer was outlining his story for Day Three.
But things were a little stickier in the living room.
There the lawyers were marshaling strong arguments against publishing, or at least urging that we wait for the injunction against the New York Times to be litigated. The lawyers were Roger Clark and Tony Essaye, two young partners in the firm of William P. Rogers, who had been the Post’s lawyer until he quit to become Nixon’s Secretary of State. In midafternoon, they were joined by our own Fritz Beebe, now chairman of the board of The Washington Post Company. My heart sank when Beebe announced that our deliberations were not to be influenced by the fact that The Post Company was about to “go public” with a $35 million stock offering. Under the terms of this offering, the Post was liable for a substantial claim by the underwriters if some disaster or catastrophe occurred. No one wanted to say whether an injunction, or possible subsequent criminal prosecution, qualified as a catastrophe. Just as no one wanted to mention the fact that any company convicted of a felony could not own television licenses, a fact which added another $100 million to the stakes.
The lawyers were throwing a lot of case law at me and my allies: Howard Simons, Phil Geyelin, and his editorial page deputy, Meg Greenfield (managing editor Gene Patterson was minding the store on 15th Street), citing legal arguments that seemed curiously irrelevant in a Georgetown living room, where Marina was selling lemonade, Tony was serving sandwiches, and telephones were ringing off the hooks. It was bedlam.
Two decades later it’s hard to figure out why the hell the Pentagon Papers had become such a casus belli for the administration. I knew exactly how important it was to publish, if we were to have any chance of pulling the Post up—once and for all—into the front ranks. Not publishing the information when we had it would be like not saving a drowning man, or not telling the truth. Failure to publish without a fight would constitute an abdication that would brand the Post forever, as an establishment tool of whatever administration was in power. And end the Bradlee era before it got off the ground, just incidentally.
But I wasn’t winning with the lawyers. A federal judge had enjoined the New York Times from publishing the same material, they argued. Therefore we did in fact have “reason to believe publication would damage the United States.”
“Bullshit,” a reporter would comment, not particularly constructively.
“Maybe we should tell the Attorney General that we have the papers and are going to publish them on Sunday,” a lawyer suggested, looking for a compromise.
“That’s the shittiest idea I ever heard,” said Don Oberdorfer, constructively. Chal Roberts announced he would quit, and make a big stink about it, if we did that.
I was getting painted into a corner. I had to massage the lawyers, especially Beebe, into at least a neutral position, while preventing the reporters from leaving him no maneuvering room during what we all knew was going to be the ultimate showdown with Kay Graham. She was getting ready to host a goodbye party for Harry Gladstein, the veteran circulation vice president, at her house about ten blocks away.
Suddenly, I knew what I had to do. I snuck out of the living room to an upstairs telephone and placed a call to Jim Hoge, then the managing editor of the Chicago Sun-Times. Would he please, urgently, send a copy boy down to whatever Chicago courthouse was trying the divorce case of president of McDonald’s Harry Sonneborn, vs. June Sonneborn, starring Edward Bennett Williams for the defendant, and give Ed this message: “Please ask for a recess ASAP. Need to talk to you NOW. URGENT”?
I had known Williams for more than twenty years and trusted his common sense more than anyone else. He was the best in the business. Fifteen minutes later, he called back all business, with a curt “What’s up?” Without loading the dice—really—I took him through everything: what the Times had written, how we had tried to match them for three days, how we had finally gotten our own set of the Pentagon Papers, what we planned to do tonight, what the lawyers were advising us, how Beebe was getting caught in a bind, the public stock issue, the threat to the Post’s three TV stations, how we were headed for a Fail-Safe telephone call with Kay. Maybe ten uninterrupted minutes, and then I shut up.
Nothing from Williams for at least sixty seconds. I was dying. And then, finally: “Well, Benjy, you got to go with it. You got no choice. That’s your business.” I hugged him, long distance, and walked casually downstairs back into the legal debate. When I had the right opening, I told them what Williams had said, and I could see the starch go out of Clark and Essaye, and I could see the very beginning of a smile on Beebe’s face. Such was the clout of this man. After another hour of argument, it was Show Time, and Fritz, Phil, Howie, and I went to the four different phones in our house and placed the call to Kay. I didn’t want to think about what I would have to do if the answer was no.
Fritz outlined all of our positions, with complete fairness. We told her what we felt we had to, we told her what Williams had said, we told her the staff would consider it a disaster if we didn’t publish. She asked Beebe his advice. He paused a long time—we could hear music in the background—then said, “Well, I probably wouldn’t.” Thank God for the hesitant “Well,” and the “probably.” Now she paused. The music again. And then she said quickly, “Okay, I say let’s go. Let’s publish.”
I dropped the phone like a hot potato and shouted the verdict, and the room erupted in cheers.
The cheers were instinctive. In those first moments, it was enough for all of us—including, let it be said quickly, the lawyers who had been arguing against publication—that Katharine had shown guts and commitment to the First Amendment, and support of her editors. But I think none of us truly understood the importance of her decision to publish the Pentagon Papers in the creation of a new Washington Post. I know I didn’t. I wanted to publish because we had vital documents explaining the biggest story of the last ten years. That’s what newspapers do: they learn, they report, they verify, they write, and they publish.
What I didn’t understand, as Katharine’s “Okay . . . let’s go. Let’s publish” rang in my ears, was how permanently the ethos of the paper changed, and how it crystallized for editors and reporters everywhere how independent and determined and confident of its purpose the new Washington Post had become. In the days that followed, these feelings only increased. A paper that stands up to charges of treason, a paper that holds firm in the face of charges from the president, the Supreme Court, the Attorney General, never mind an assistant attorney general. A paper that holds its head high, committed unshakably to principle.
What was immediately obvious to us was the amount of work still to be done before we hit the street with a Pentagon Papers story. In fact, we missed the first edition, while Beebe and I argued—for the first time—about Ellsberg. Beebe had not realized Ellsberg was Ben Bagdikian’s source, and when he learned it, he tried briefly to revisit Kay’s decision, wondering if Ellsberg had stolen the Pentagon Papers, in fact or in law. But there was no steam in that last spasm, and finally we published . . . and waited for the Nixon administration’s response and for a look at how the New York Times would handle our story—with an AP wire story, page one.
We didn’t have long to wait. Just after 3:00 P.M., Friday, June 18, with Kay and some editors in my office, I got a call from Assistant Attorney General William H. Rehnquist. After a minimum of I-guess-you-know-why-I’m-calling and I-suspect-I-do, the future Chief Justice came to the point, and started reading what turned out to be the same message he had read to the New York Times four days earlier:
I have been advised by the Secretary of Defense that the material published in The Washington Post on June 18, 1971, captioned “Documents Reveal U.S. Effort in ’54 to Delay Viet Election” contains information relating to the national defense of the United States and bears a top-secret classification. As such, publication of this information is directly prohibited by the provisions of the Espionage Law, Title 18, U.S. Code, Section 793. Moreover, further publication of information of this character will cause irreparable injury to the defense interests of the United States. Accordingly, I respectfully request that you publish no further information of this character and advise me that you have made arrangements for the return of these documents to the Department of Defense.
My hands and legs were shaking. The charge of espionage did not fit my vision of myself, and all I knew about Title 18 spelled trouble. That’s the Criminal Code. But with as much poise as I could muster, I said, “I’m sure you will understand that we must respectfully decline.” He said something like he figured as much, and we hung up.
Soon afterward, the Justice Department contacted Clark and Essaye and told them to be in District Court at 5:00 P.M. The Times editors and lawyers were in various courts, arguing appeals and appealing decisions against them. At no time did they—or we—consider violating court orders, damning the torpedoes and proceeding with publication.
For the next eight days—until just after 1:00 P.M. on Saturday, June 26, in the Supreme Court of the United States—we were almost full time in the U.S. District Court for the District of Columbia, the U.S. Court of Appeals for the District of Columbia, the District Court again, the Court of Appeals again (sitting en banc this time), or in various legal offices, researching and actually writing affidavits and legal briefs.
At 6:00 P.M. on the 18th, the government asked District Court Judge Gerhard A. “Gary” Gesell to enjoin the Post from any further publication of the Pentagon Papers. Two hours later, he ruled for the Post. It took the government only another two hours to round up three judges on the U.S. Court of Appeals to ask them to overrule Judge Gesell. That made it just before 10:00 P.M.—when we were desperately trying to get Murrey Marder’s story into the paper and get the presses started. They were supposed to start at 10:15 P.M., but as luck would have it, this night they were late. Herman Cohen, the news dealer who used to take the very first copies of the paper off the press to newsstands in the major hotels, was waiting, waiting, waiting, and the three-judge appellate panel was deciding whether to reverse Gesell’s ruling. We figured if we could get a thousand copies on the newsstands we could argue that we had effectively published, therefore any injunction could not affect that day’s installment. In addition, we had put the story on the L.A. Times-Washington Post News Service wire, with a special warning to editors that the Appellate Court was deliberating even as they were reading.
Finally, after 1:00 A.M. on the 19th, the court enjoined us, but agreed with Roger Clark that we could complete the publication of that day’s paper.
Scenes from the next chaotic days remain frozen in my mind like frames from a Cocteau movie:
• We defendants had to be given emergency security clearances before we could even attend our own trial on charges of publishing documents we had already published.
• Courtroom windows were specially draped with blackout cloth, presumably to prevent unauthorized lip-readers (Soviet spies? Comsymps from Hanoi?) from watching testimony.
• Reporters had to spend hours explaining the Pentagon Papers to lawyers who had never had to cope with the arcane Pentagon world of classified material, before the lawyers could decide what affidavits they wanted from editors and reporters, or what questions to ask.
• Many times, stories that had already appeared in either the Times or the Post were included in the Pentagon Papers, but now classified top secret by the government.
• Often Post reporters plainly knew so much more than government prosecutors and government witnesses about U.S. involvement in Vietnam it was almost embarrassing . . . until one remembered how high were the stakes. My favorite ludicrous moment came when Gesell asked some poor Deputy Assistant Secretary of Defense, Dennis J. Doolin, to identify the one thing in the Pentagon Papers that would most damage the interest of the United States, if published by the Post. The poor guy blanched. The government lawyers caucused furtively, and quickly asked for a recess. We were almost as worried, trying to figure out what they would come up with. (We had collectively read most of the Pentagon Papers, surely more than the government had read, but none of us had read them all.) Finally, the trial resumed. The last question was reread, and the witness responded (you could almost hear the roll of drums): “Operation Marigold.”
The more studious defendants among us—Chal Roberts, Murrey Marder, and Pentagon correspondent George Wilson—had brought a dozen reference books with them to court, just in case, and damned if they weren’t able to find quickly three already published, detailed explanations of Operation Marigold, a June 1966 effort by President Johnson to get representatives of Poland and Italy to explore possible peace settlements with Ho Chi Minh. The following week’s edition of Life magazine—not yet public—featured a signed article by Britain’s prime minister, Harold Wilson. It was headlined “Operation Marigold.”
Later, in a secret session—closed even to us defendants—before the U.S. Court of Appeals for the District of Columbia, the government tried to supplement an affidavit by Vice Admiral Noel Gayler, director of the National Security Agency. Gayler wanted to describe as particularly dangerous to U.S. security a specific radio intercept reported in the Pentagon Papers, allegedly proving that North Vietnamese ships fired on U.S. destroyers in the Gulf of Tonkin in the summer of 1964. The remarkable George Wilson stunned everyone by pulling out of his back pocket a verbatim record of the intercept, in an unclassified transcript of Senate Foreign Relations Committee hearings.
As the Pentagon Papers bounced their way from court to court—in New York and Washington—on their way to The Supremes, I made a decision which now makes me blush.
In an effort to be prepared for any eventuality, we had assigned two reporters to go out to Chief Justice Warren Burger’s house in nearby Arlington, after trying unsuccessfully to reach him by phone. If the U.S. Court of Appeals ruled for the Post en banc, we knew the government would apply to the Chief Justice for an immediate stay—to stop us from publishing—while they appealed to the Supreme Court. We didn’t want the government to sneak out unnoticed to Burger’s house, so we sent our own emissaries: Spencer Rich, who normally covered the Senate, and Martin Weil, a former CIA type, who worked nights on rewrite as a city reporter.
Together, they walked up the driveway to the Chief Justice’s home and rang the doorbell. It was almost midnight. Marty Weil’s memo describes the next few minutes better than I can:
After about a minute or two, the Chief Justice opened the door. He was wearing a bath robe. He was carrying a gun. The gun was in his right hand, muzzle pointed down. It was a long-barreled steel weapon. The Chief Justice did not seem glad to see us. Spencer explained why we were there. There was a considerable amount of misdirected conversation. It seemed for a bit that people were talking past each other. Spencer, who held up his credentials, was explaining why we were there, but the judge seemed to be saying that we shouldn’t have come. Finally, after a little more talk, everybody seemed to understand everybody. The Chief Justice said it would be all right for us to wait for any possible Justice Department emissaries, but we could wait down the street. He held his gun in his hand throughout a two or three minute talk. Sometimes it was not visible, held behind the door post. He never pointed it at us. He closed the door. We went down the street and waited for about three hours. Then we went home.
I was at home when the desk called to report this brief encounter and ask where we should play the story—page one, or inside?
“What story?” I shouted. “Just because the Chief Justice of the United States comes to the door of his house in the dead of night in his jammies, waving a gun at two Washington Post reporters in the middle of a vital legal case involving the Washington Post, you guys think that’s a story?”
Over the years, I have prided myself in recognizing a good story when I see one, even when no one else sees it. This is what I do best. But of course I had momentarily taken leave of my senses. All I could think of was how much Chief Justice Burger disliked the press in general, and the Post in particular, how ridiculous the alleged story would make him look (I could visualize the Herblock cartoon with clarity), and how much I wanted to avoid pissing him off a few days before he took our fate in his hands.
No story, I ruled, and there was no story, until after the Supreme Court had decided our fate, when Nick Von Hoffman slipped it into a column.
No story? I hereby apologize.
On Monday, June 21, 1971, Judge Gesell again ruled in favor of the Post, after the three-judge Appellate Court asked him to hold an evidentiary hearing on whether the publication of the Pentagon Papers would “so prejudice” U.S. interests, or cause “such irreparable injury,” that prior restraint could be justified. On Thursday, June 24, the nine judges of the U.S. Court of Appeals ruled 7-2 in the Post’s favor. On Friday, June 25, the Supreme Court granted certiorari and agreed to hear the case. On Saturday, June 26, the case was argued in the Supreme Court. And on Wednesday, June 30, 1971—seventeen days after the New York Times broke the story, and ten days after the Post’s first publication—the Supreme Court ruled 6-3 for the two newspapers. The next day, both of us resumed our stories about the Pentagon Papers.
For the first time in the history of the American republic, newspapers had been restrained by the government from publishing a story—a black mark in the history of democracy.
We had won—sort of.
What the hell was going on in this country that this could happen?
How could a judge of the highest Court of Appeals in the land, Judge Malcolm R. Wilkey, a Nixon appointee who had been general counsel of the Kennecott Copper Corporation, and an Eisenhower appointee to the Appellate Court, seriously argue that the Papers “could clearly result in great harm to the nation,” bringing about “the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate”?
How could a president (who was three years from resigning in disgrace) and an Attorney General (who was three years later sent to jail himself) and an assistant attorney general (who was fifteen years from becoming Chief Justice of the United States) rush headlong and joyous down this reckless path?
Why this persecution/prosecution when the Pentagon Papers dealt entirely with decisions taken exclusively by Presidents Eisenhower, Kennedy, and Johnson, and ended some months before the Nixon administration took office?
And how come there was never a peep out of any of the principals when the Solicitor General of the United States, who argued the government’s case before the Court of Appeals and the Supreme Court, the distinguished former dean of the Harvard Law School, Erwin N. Griswold, confessed eighteen years later that the government’s case against the newspapers was a mirage? “I have never seen any trace of a threat to the national security from the Pentagon Papers’ publication. Indeed, I have never seen it even suggested that there was an actual threat,” Griswold wrote in a brave—and almost unheard of—correction of the record. *
We had no answers to those questions beyond recognition that the Cold War dominated our society, and realization that the Nixon-Agnew administration was playing hardball.
We did know that the Pentagon Papers experience had forged forever between the Grahams and the newsroom a sense of confidence within the Post, a sense of mission and agreement on new goals, and how to attain them. And that may have been the greatest result of publication of the Pentagon Papers.
After the Pentagon Papers, there would be no decision too difficult for us to overcome together.