The Pentagon Papers: The Department of State Supports Action in the Courts

Today’s post was written by David Langbart, archivist in Research Services 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  To bolster the case for preventing further publication, the Department sent analyses of examples from unpublished portions of the study that “illustrate embarrassment in our foreign relations that continued publication would cause.”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.

memo pointing out other parts of the Pentagon Papers that could lead to international embarrassment
making future relations with Britain and Japan more difficult b/c of revelation of the US attitude towards their acceptance of bombings
revelation of asking Canadian envoy to do more than just carry messages threatens US/Canadian relations, and threatens role of ICC
more endangering relations with Canada, also outing confidential conversations
endanger France's role as intermediary
danger in revealing effectiveness of electronic communication to Soviets, possible difficult relations w/British leader Wilson
Telegram from Department of State to US Mission to the United Nations, Jun 17, 1971 (NAID 580618)

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.

SE Asia and NATO allies now concerned abt sharing sensitive information with US
New Zealand govt is calm but concerned, Canada govt is embarrassed
Australia, United Kingdom, Canada only have asked what else may become public
Thai/Filipino govts concerned abt their information being revealed, make future negotiations more difficult for US
Communist countries will have a field day with the NY Times coverage
Telegram from Department of State to US Mission to United Nations, Jun 17, 1971 (NAID 580618)

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.

summary of Supreme Court ruling
it is on the govt to come up with better ways to prevent unauthorized disclosures, and ways to declassify materials that no longer need it
Telegram from Department of State to all Diplomatic Posts (p13-14), Jul 3, 1971 (NAID 580618)

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.