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THE PENTAGON PAPERS: SECRETS, LIES AND AUDIOTAPES

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SPECIAL APPENDIX FOR THE SECOND CIRCUIT

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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 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.

PART I: BRIEF FOR THE UNITED STATES (SECRET PORTION)

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