Today’s post was written by David Langbart, archivist in Textual Reference at the National Archives at College Park, MD.
As noted in a previous post, the legal battle over publication of the “Pentagon Papers” by the New York Times took place in the Federal court in New York, where the Times was located. To support the government’s position in court, the Department sent information to its officials in New York City through the U.S. Mission to the United Nations (USUN). To bolster the case for preventing further publication, the Department sent analyses of examples from unpublished portions of the study that “illustrate embarrassment in our foreign relations that continued publication would cause.” The following is an example of one such report. While most of the examples therein involve the subjective notion of political embarrassment, one example does reveal an objective example of American intelligence capability.
As the case moved through the court in New York, the Department sent reports about the repercussions of publication as reported by American diplomats overseas for use in court. An initial assessment of the impact of publication went out on June 17. In it, the Department asserted that publication created embarrassment for U.S. allies and caused concern among those allies about sharing sensitive information with the U.S. Furthermore, reports from behind the Iron Curtain indicated that those countries were going to use the revelations against the U.S.
The Washington Post, which had also received a copy of parts of the Department of Defense study, began publishing excerpts on June 18. Inconsistencies between the various courts ruling on the issue of publication led the Supreme Court to take on a combined case.
The Supreme Court’s June 30 6–3 decision allowed publication to continue. That ruling stated that the government had failed to meet the heavy burden of proof necessary to secure an injunction for prior restraint injunction. The Court, however, was not unified; the nine justices wrote numerous separate opinions that disagreed on substantive matters. The Department considered the result important enough that it sent all U.S. diplomatic posts a 14-page summary of the decision for their guidance in dealing with private and public inquiries. That message ended with the following summary and conclusion.
Next: Use by Adversaries
Sources: Department of State to U.S. Mission to the UN, Telegram 108666, June 17, 1971; Department of State to USUN, Telegram 108696, June 17, 1971; Department of State to all Diplomatic Posts, Telegram 120555, July 3, 1971 all in file POL 27 VIET S, 1970-73 Subject-Numeric File (NAID 580618), RG 59: General Records of the Department of State.