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THE PENTAGON PAPERS: SECRETS, LIES AND AUDIOTAPES

The Nixon Tapes and the Supreme Court Tapes

The Secret Briefs and the Secret Evidence
BRIEF FOR THE UNITED STATES (SECRET PORTION)

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Return to Secret Briefs Introduction

BRIEF FOR THE UNITED STATES (SECRET PORTION)

The Griswold secret brief (annotated "Reviewed for Declassification" with dates) identifies the 11 items or sections of the Pentagon Papers disclosure of which would cause irreparable damage to U.S. national security. We have commented upon each of the 11 items in the brief and attached the documents involved so the reader may judge for himself.

In the discussion that follows the reader should keep in mind that the relevant legal standard articulated to the Supreme Court by Erwin Griswold, the Solicitor General of the United States, is that the identified material would, if revealed, cause direct and immediate damage to the national security of the United States.

NOTE: The first page reference in each case refers to relevant pages of Solicitor General Griswold's secret brief. Additional references (linked below) are the relevant portions of the Pentagon Papers study that Griswold cites as evidence in his brief. Since in most cases we have used pages from the Senator Gravel edition of the Pentagon Papers (rather than the version declassified by the House Armed Services Committee) the page references will not always match those cited by Griswold but are, in fact, correct.

Griswold Claim No. 1 (pp. 4-5)
The Griswold secret brief starts off with a blanket claim for damage assumed to result from the release of volumes of the Pentagon Papers dealing with the diplomacy of attempts to open negotiations from 1964 to 1968 (shown here as VI-C-1 through VI-C-4 – a two page summary of the four volumes was included in the 21 June 1971 affidavit by William Macomber, Deputy Under Secretary of State for Administration, in the Washington Post case). Probably the most important point to be made is that these diplomatic volumes were not part of the leak, and were never released by Daniel Ellsberg or anyone else. Ellsberg has made clear in public forums and commentaries that he refused to include these volumes in the leak because he feared release would give the Nixon administration an excuse to halt ongoing negotiations for a Vietnam settlement. At trial the government professed not to know exactly what portions of the Pentagon Papers had been leaked, and the courts agreed to proceed on the basis of assuming all the original documents were compromised. In point of fact, however, neither specific nor general damage could have resulted here and the argument was moot.

Griswold Claim No. 2 (p. 4)
The first specific claim is that the diplomatic volumes contain derogatory comments that might be offensive to nations or governments, in particular U.S. allies with troops in South Vietnam, principally South Korea, Thailand, and Australia. Thailand is singled out as critical because 65% of U .S. air sorties over Vietnam were then being launched from U.S. bases in that nation. The diplomatic volumes were, in fact, largely declassified under the Freedom of Information Act in 1978; while there are some significant deletions, probably more than 99% of the material was in fact released. In the diplomatic papers as released there are only five references to Australia, two to South Korea, and one to Thailand in a text of more than 1,000 pages. Most of them are notations that one or another country had or had not been briefed on some initiative. None is derogatory.

The Griswold brief makes the claim that the pace of U.S. withdrawal from Vietnam would have to become slower if the diplomatic volumes were released. The claim is purely speculative. It is equally likely that, faced with the withdrawal of its allies, the U.S. would have withdrawn more rapidly itself.

Griswold Claim No. 3 (p. 5)
The Griswold Brief asserts that there are specific references to the names and activities of CIA agents "still active in Southeast Asia.” Almost all the CIA officers identified in the documents were in fact high level officials like Richard Helms, John McCone, Allen Dulles, and Richard Bissell, publicly known officials. The only clandestine services officer identified is Lucien Conein, active in plots to overthrow Ngo Dinh Diem, and by 1971 Conein was no longer with the CIA. If accurate, the assertion in the government's brief can only have referred to South Vietnamese officials who were on the CIA payroll as sources of information. Those persons, however, are referred to in thee documents in their actual Saigon government capacities and discussed taking various actions. They are not identified as CIA agents. The additional claim in the brief that currently continuing CIA operations are referred to in the Pentagon Papers can be true only in the sense that the war, including such features as pacification (which had a CIA component), or efforts to block the Ho Chi Minh Trail, and so on; itself continued.

The Griswold brief additionally claims there are "references to the activities of the National Security Agency." In fact there is a document (cited elsewhere in this paper) that refers to a number of National Security Agency personnel included in a 1961 deployment increment (15 men). There is also a statement in the text of the Pentagon Papers that covers the early (1961-1963) part of the war that the U.S. is monitoring North Vietnamese radio transmissions. But the papers have no detailed discussion of programs, methods, results, procedures, management issues, ongoing efforts, and so on. This is hardly surprising since Pentagon Papers analysts were not cleared for communications intelligence data nor was the study intended to cover this matter. That radio intelligence was a "currently continuing" activity (Griswold brief, p. 6) is correct, but in the same sense as the last point, this could convey no special knowledge to Hanoi. The North Vietnamese were aware long before 1971 that U.S. forces were listening in on their radio transmissions, and their knowledge of U.S. activities was far more detailed than anything they could learn from the Pentagon Papers.

No locations are given in the brief for material that is actually compromising in either of these areas.

Griswold Claim No. 4 (p. 6; ref to V-B4(a) pp. 249-257, 259-311)
The Griswold brief objects to the disclosure of contingency plans of the Southeast Asia Treaty Organization (SEATO), most specifically SEATO Plan 5. The SEATO plans referred to were 1961 plans for blocking the lower panhandle of Laos. Not only were these not "continuing military plans" as asserted in the brief, but they involved absurdly small numbers of troops, given the North Vietnamese dispositions in Laos in 1971, and would have led to major military debacle if implemented. More important, by 1971 the deployment of any number of U.S. troops into Laos was illegal under United States law. Here the U.S. government was in a position much like President John F. Kennedy with the New York Times revelations of CIA preparations for the Bay of Pigs invasion – the press would have been doing the government a favor by publishing the leak. In addition, the U.S. government had just finished supporting a major South Vietnamese invasion of Laos which had been roundly defeated (Lam Son 719); the assertion in the Griswold brief that there was any secret left about this option was disingenuous. Finally, by 1971 the SEATO alliance was moribund and the claim that any SEATO contingency plan might be taken off the shelf and implemented was farfetched.

Notwithstanding its claims that this material must remain secret, the United States government published it in full in its own edition of the Pentagon Papers.

Griswold Claim No. 5 (p. 6; ref to IV-C-6 p. 129)
[NOTE: Link includes excised and full versions of IV-C-6 p. 129]
The Griswold brief fears giving Russian intelligence insight into U.S. intelligence capabilities by revealing a U.S. estimate of Soviet attitudes and intentions toward the Vietnam war. In fact the Pentagon Papers quotes only one paragraph of the estimate (SNIE 11-11-67, which is not, in fact, identified in the leaked documents) which says that the Russians might send volunteers or crews for aircraft or defense equipment to Vietnam, or break off negotiations with the U.S. on various subjects. The mining or blockade of the North Vietnamese coast is predicted to challenge Russian leaders. An examination of the underlying document, the SNIE, will demonstrate that it is pitched at a similar high level of generality. The Griswold brief's assertion that the estimate "is in large part still applicable" is accurate in the sense that any simple enumeration of broad options will always contain the range of actions that are possible in a situation.

Griswold Claim No. 6 (p. 7; ref to IV-C-6(b) p. 157)
The Griswold brief asserts that the revelation of a footnote describing the judgment of the United States Intelligence Board on Russian capacity to supply various types of weapons to North Vietnam "has much about it that is current, and its disclosure . . . could lead to serious consequences for the United States." The source text is a May 19, 1967 draft memorandum from Secretary of Defense Robert McNamara to President Lyndon Johnson which contains a footnote describing the United States Intelligence Board (USIB) opinion. The "USIB estimate" is actually a reference to SNIE 11-11-67, described above. That estimate cites various kinds of weapons that Russia was capable of giving Hanoi, including artillery, aircraft, rockets, patrol boats, and so on. Again, these are in the nature of an inventory of possibilities. Neither the footnote nor the underlying intelligence estimate contains any numerical predictions whatsoever. It remains an enumeration of broad Russian options. Although Department of Defense censors deleted the offending footnote at the location cited in the Griswold brief, in their own edition of the Pentagon Papers they permitted publication of the identical note (see IV-C-7(b) page 47).

Griswold Claim No. 7 (p. 7; ref to IV-C-6(b) p. 168)
The Griswold brief asserts that disclosing that the United States ever considered a nuclear response in the event of a Chinese attack on Thailand "could have very serious consequences to the security of the United States." The document containing language about nuclear weapons use is not a Joint Chiefs of Staff memo of May 27, 1967, as cited, but JCSM 288-67, of May 20, in which the Joint Chiefs discussed U.S. worldwide military posture. This discrepancy in dates is probably a typographical error in the original legal brief. The statement about nuclear weapons arose in the context of a discussion of a U.S. invasion of Cambodia, which was illegal under U.S. law by 1971. Hanoi might counter with more forces in Laos, leading the U.S. to send extra troops to Thailand, and China to attack the Thais. All of these possibilities were exceedingly remote.

The language about nuclear weapons in the Joint Chiefs memorandum was not unusual; that is, with limited ground forces in the U.S. military, it was customary for the Joint Chiefs to invoke nuclear weapons in almost all discussions of war with China. Throughout the 1950s, during the Eisenhower administration's "New Look" national security policy, nuclear weapons were deliberately built into the contingency plans. In addition, there were four Sino-American crises during that interval, all of which involved U.S. nuclear threats against China (Korea 1953; Tachen 1954-55; Taiwan Straits 1958; Quemoy/Matsu 1960), plus the Dien Bien Phu crisis of 1954, in which nuclear weapons were brandished by the U.S. secretary of state with language about retaliation "at places and with means of our own choosing," which became known as the doctrine of massive retaliation. Almost identical language about nuclear weapons occurs in JCS and other documents in the Pentagon Papers about the earlier period which censors did not bother to delete from the government edition of the Pentagon Papers. In any case, for the Griswold brief in 1971 to argue the serious consequences of this item in the Pentagon Papers requires assuming the Chinese had paid no attention to all these events and public pronouncements by the United States. If there was damage to the national security here, this occurred long before 1971 and the Pentagon Papers were not the source of it.

Griswold Claim No. 8 (p. 7; ref to IV-C-7(b) pp. 161-163)
The Griswold brief asserts that revelation of this source material, a cable to Washington by then-ambassador to Moscow Llewellyn C. Thompson in March 1968, would impair Thompson's effectiveness and provide the Russians valuable intelligence information. The source text is Moscow cable 2983 of March 1, 1968, in which Ambassador Thompson comments on the likely Russian response to a range of U.S. options in Vietnam, things from the mining of Haiphong harbor to possible invasions of North Vietnam, Laos or Cambodia; to increasing troop levels in the South or more bombing of the North. The intelligence Russians could learn from this cable is the set of options the U.S. was considering in 1968 plus Thompson's assessments of Russian reaction. The set of options could not have been that useful because, much like the transparency of Russian options toward Hanoi for U.S. intelligence, American options had not changed since the beginning of the big unit war. Moreover, by 1971 every one of those options save the mining of Haiphong had been played out and U.S. withdrawal was accepted and publicly known policy. Llewellyn Thompson's opinions of the options were possibly useful as an index of his thinking, as an indicator the Russians could use to gauge how well Thompson had understood the Russian position in 1968, or as an indicator to the Russians that Thompson was important enough to Washington that the U.S. would share with him its most secret Vietnam plans.

None of these possibilities lends any support to the claim in the Griswold brief that publication of the cable would "impair" Thompson's effectiveness as an arms control negotiator, "which surely directly affects the security of the United States." On the contrary, publication most likely encouraged Russians to a high regard for Ambassador Thompson. In any case the entire issue was specious, through no fault of Solicitor General Griswold, because the arms control negotiations were directly run and dominated by the White House in the person of national security adviser Henry Kissinger. The Russians surely knew that; the effectiveness of Llewellyn Thompson was a false issue.

Griswold Claim No. 9 (p. 8; ref IV-C-9(b) p. 52)
The Griswold brief declares that there was a grave risk of adverse reactions from South Vietnam and Laos if the release of the Pentagon Papers revealed that they had held discussions related to possible South Vietnamese military action in Laos. The source text, in its entirety, reads: "In May talks started between Lao and GVN [i.e. South Vietnamese] military staffs. The occasion was planning for barrier extension westward, but Washington realized at once that there was little the US could do to limit the contacts to that subject." There was no explicit discussion in the Pentagon Papers of South Vietnamese action in Laos, and no evident reason the passage would be offensive, other than revealing the fact of the talks. In 1971, however, coming after the (failed) South Vietnamese invasion of Laos in Lam Son 719, the alleged problem of a breach of confidence had only academic importance.

Griswold Claim No. 10 (pp. 8-9)
The Griswold brief threatens grave damage from the revelation of communications intelligence secrets, making the enemy aware of significant U.S. intelligence successes, permitting them to assess U.S. communications intelligence capability, and to impair current military operations. This is a strange claim. To begin with the Pentagon Papers carried a "Top Secret" level of classification within the Department of Defense. By itself that classification grade usually excludes communications intelligence information, which exists in what the United States terms a "special compartmented" category and carries a separate codeword. There was no communications intelligence in the Pentagon Papers in the first place. As for directly affecting U.S. operations, the character and content of U.S. operations had completely changed between 1968 and 1971 from large-unit clearing efforts to small scale patrols in support of pacification. The specifics were all different by 1971, only the techniques remained the same, but the possibility of damage to national security is mooted by the absence of communications intelligence from the documents.

The United States Government deleted from the Washington Post’s brief commenting on the in camera evidence references to three passages in the documents, and the passages themselves, that refer to organization and administration of communications intelligence. All these references relate to the spring of 1961, when Deputy Secretary of Defense Roswell Gilpatric headed an interagency task force on Vietnam policy. The deletions occur in successive drafts of the task force report. The first is a recommendation to “Expand the current program of interception and direction finding covering Vietnamese Communist communications activities in South Vietnam, as well as North Vietnamese targets,” and asks for authority to conduct these activities on a joint basis with South Vietnamese. (The source document was declassified in 1977). The second deletion has nothing to do with communications intelligence, and recommended an additional 40 personnel for the CIA station in Saigon – for paramilitary and covert action programs. The third deletion was of a recommendation to send 15 communications intelligence specialists to Vietnam to help train South Vietnamese counterparts. No conceivable damage to the national security of the United States would have resulted from the exposure of this material, which had nothing to do with either U.S. codes or foreign codebreaking. Only the reflexive desire to keep secret all information related to intelligence could be served by deleting these items from the government edition of the Pentagon Papers. These were also exceedingly thin reasons to keep secret all forty-seven volumes of the Pentagon Papers, as was the government’s proposed remedy in this court case.

Griswold No. 11 (p. 10)
The Griswold brief mentions prisoners of war to invoke the claim that breaking the confidentiality of diplomatic communications would adversely affect negotiations to bring them home. The confidentiality of diplomacy argument is one that the Nixon administration made very strongly, bringing in diplomat William B. Macomber who made it the centerpiece of his testimony and affidavit, and even actually soliciting comments from foreign governments for use in a legal brief. These were essentially political arguments, however. A wide variety of foreign governments had made public their roles in Vietnam negotiating efforts, and even the secret give-and-take was already on the record in a variety of books and news articles. (In particular see David Kraslow and Stewart H. Loory, The Secret Search for Peace in Vietnam, and Chester Cooper, The Lost Crusade: America in Vietnam.) As we now know, moreover, the diplomatic volumes of the Pentagon Papers had never been compromised in the first place. Even if they had, in more than a thousand pages of text the diplomatic volumes have only eight references to prisoners of war. It is difficult to avoid the conclusion that the prisoner issue was incorporated into the U.S. legal brief primarily to invoke an issue that would resonate with the justices.

PART II: SPECIAL APPENDIX FOR THE SECOND CIRCUIT

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