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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
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
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
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.
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
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
Part I, No. 8 (p. 11; ref. IV-C-5 pp. 11-32
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
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
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
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.
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
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
PART I: BRIEF FOR THE UNITED STATES (SECRET
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