David Rudenstine.
The Day the Presses Stopped: A History of the Pentagon Papers Case.
Berkeley: University of California Press, 1996. x + 416 pp. Notes,
bibliography, interviews, index. $34.95 (cloth), ISBN 0-520-08672-4 .
Reviewed by:
Matthew Taylor , Rice University.
Published by:
H-Law
(April, 1997)
The Day the
Presses Stopped
As the late historian and columnist Francis Loewenheim
would have said, The Day the Presses Stopped is "a real book."
Encyclopedic in narrative detail, carefully documented, balanced and
forthright in legal analysis, David Rudenstine's book adds substantively
to our understanding of an important piece of recent American history. It
should be required reading of all serious students of the Vietnam era, the
history of the print media, and the First Amendment.
Rudenstine, a dean and professor at the Benjamin N. Cardozo
School of Law, devotes the majority of his attention to the legal cases
that arose from the federal government's efforts to enjoin the New York
Times' and the Washington Post's publication of the so-called
Pentagon Papers (hereafter PPs). In all, 308 pages (of 356 pages of text)
detail the eighteen-day saga from publication (June 13, 1971) to the
Supreme Court's decision (June 30, 1971) to deny the Executive's attempt
at prior restraint.
According to the book's dust jacket, Rudenstine "reaches
important conclusions that will stun many readers." Well, what are his
conclusions, and should we be stunned? Up front, Rudenstine admits that he
began his investigation with a bias against the Nixon administration and
its case against the Times. Like most liberals who came to oppose
the Vietnam War (most later in the war than they will ever admit) and
always despised Richard Nixon, Rudenstine regarded the "legal dispute as
an effort by the Nixon administration merely to withhold deeply
embarrassing information about U.S. involvement in Vietnam, and as
connected to Nixon's general campaign to intimidate the press (pp.8,11)."
His research convinced him that these views were misguided. Indeed, one
new finding is that Nixon, initially, reacted quite ambivalently to the
Times' publication of the PPs. Related and more appropriately labeled
stunning, Rudenstine found that once Nixon and the Justice
Department mobilized to stop the Times (and, later, the Post)
from further publication, they did so out of genuine concern that the PPs
contained material which, if published, might threaten important national
security interests and undermine the government's ability to govern
(pp.8,9,66-71,81-86,120,354-55).
By contrast, Rudenstine's research did not alter his
opinion of the Supreme Court's decision. By a 6-3 vote, the Court denied
the government's request for an injunction against continued
publication.[1] Rudenstine still views this decision as courageous.
In his view the Court "decided to risk the dangers inherent in a freer
press because the alternative resolution--enhancing government power to
censor the press--was even more threatening to a stable and vital
democracy ... Distilled, the decision represents the judgment that
democracy must tolerate risks--even potentially serious risks--inherent in
freedom because freedom also strengthens a democracy's fundamental
security" (pp. 355-365).
Rudenstine's judgement of the Supreme Court's decision
rings true, but it's hardly surprising. However, Rudenstine also
concludes--and this certainly will surprise many readers--that "it must be
recognized that the Court's decision put the nation's security at risk, at
least to some degree," because the PPs "did contain some information that
could have inflicted some injury ..."(pp. 9, 354). For example, some PPs
documents contained information that might have compromised intelligence
sources and methods or which might have influenced ongoing secret
negotiations with Hanoi. Had the government marshaled such evidence more
effectively, Rudenstine contends, the key PP's case might easily have gone
the other way. But before he takes us into the Supreme Court to hear oral
arguments and into chambers to assess each Justice's opinion, Rudenstine
adeptly guides the reader through every step of both the PPs' felonious
journey from the vaults of Defense Department into the hands of Daniel
Ellsberg and the New York Times, and the legal cases' frantic climb
up the federal court system. The PPs' journeys reached an initial climax
on June 13, 1971, when the Times published the first of a series of
articles based on the secret history of U.S. involvement in Southeast
Asia. Prepared on the order of Secretary of Defense Robert S. McNamara
between June 1967 and January 1969, the forty-seven volume History of
U.S. Decision Making Process on Vietnam Policy totaled 7,000 pages,
4,000 of which were documents. Only fifteen copies of the secret study
were printed, all of which were kept under lock and key.[6]
The Times attained the study illegally, from Daniel
Ellsberg. A distinguished graduate of Harvard and a former Marine Corps
officer and Defense Department analyst who had, by 1967, turned against
the war in Vietnam, Ellsberg gained access to the PPs in 1969 while
working at the RAND Corporation. Ellsberg had worked briefly on the PPs
project in 1967 at the request of Morton Halperin who, along with Leslie
Gelb, supervised the PPs project (p. 39). Halperin approved Ellsberg's
request for access to the final study; but, rather than using the study as
part of his research at RAND, Ellsberg made himself a copy of the massive
history and sought to have it published, believing its contents would
contribute to growing public disillusionment about the war and, thereby,
to bringing U.S. involvement to a swift end. After his efforts were
rejected by several members of Congress, Ellsberg, in February 1971,
turned to Neil Sheehan of The Times (pp.40,42-47,54-56,64). The
rest, as they say, is history.
In the second, headline-grabbing journey of the PPs, that
of the legal cases, every brief, every debate at the Justice Department
and among the newspapers' legal teams, and every ruling by Judges Gesell,
Gurfein, Kaufman, and the Second Circuit Court, come under Rudenstine's
discerning eye. Stylistically, the result is somewhat Byzantine, and many
of the book's principal themes occasionally disappear into the
overwhelming mire of information presented. But Rudenstine's thoroughness
pays dividends as well, leaving the reader with an informed appreciation
of the issues at stake and the personalities involved. The strategies and
performances of the opposing counsel--in particular, the keystone-cops
quality of the government's representatives--will fascinate lawyers and
legal scholars.
Two other conclusions receive special attention from the
author and his publisher: first, that neither the Court's decision nor the
Constitution's protection of free speech precludes prior restraint (p.
354); second, that the PPs publication led directly to the machinations
and crimes that grew into Watergate and, thus, to the downfall of the
Nixon administration (pp. 4-6). For those at all familiar with the history
of the Watergate scandal, this second conclusion comes as no surprise
(indeed, this writer has been teaching this "stunning" conclusion to
undergraduates at Rice since 1991). On two other significant points the
author's apparent lack of knowledge of Watergate and Vietnam detracts from
what is a very fine historical narrative. First, Rudenstine all but
dismisses what was (and continues to be) Henry Kissinger's principal
concern regarding the PP's publication: namely, their potential effect on
American credibility and the secret negotiations with Communist China.
According to Rudenstine, not only was any concern for the PPs' impact on
superpower negotiations misguided at the time, but Kissinger has ever
since exaggerated this concern in order to disguise the self-interest that
motivated his encouragement of Nixon to "go after" the Times (pp.
72-74,90-92,121-122,253-254).
Rudenstine's assessment of the White House's determination
not to appear weak, and his account of Kissinger's outbursts, particularly
against his former student Daniel Ellsberg, relies on sources of
questionable merit: H.R. Haldeman and Seymour Hersh. Indeed, a careful
reading of Rudenstine's choice of words in this section reveals some shaky
history: the text here is littered with weak words-- "must have assumed,"
"would almost certainly," "what seems more plausible," "it is
possible."[3]
But the more serious misstep here is one of context and
interpretation, not sources. What the author fails to appreciate--and what
tellingly suggests an anemic knowledge of the historical context of
1969-1973--is that the national security advisor's concern with "weakness"
derived directly from his concern with his diplomatic agenda, an agenda
which in mid-1971 was approaching a potentially momentous but also
extremely fragile turning point. Mr. Kissinger was then engaged in the
final stage of a two-year-long effort to establish relations with Peking;
the stunning (now here is an appropriate use of the word) announcement
that President Nixon would visit China was only one month away. Upon the
successful establishment of a Sino-American relationship, Nixon and
Kissinger reasonably believed, rested the hopes of nearly all of the
administration's major foreign policy objectives: negotiating an
acceptable end to the war in Vietnam; maneuvering Moscow into a less tense
and more productive relationship, including conclusion of SALT I; and,
above all, redressing the global balance of power.[4] Mr. Rudenstine
apparently either does not know this or fails to appreciate the subtle and
complex interrelationship among the various components of the
Nixon-Kissinger strategic design; thus, he fails to recognize that the
White House's obsession with not signaling weakness meant protecting
credibility and secrecy at this enormously important and unpredictable
moment in American diplomatic history.
A less egregious but no less revealing error is the
author's ingenuous interpretation of the handling of the PPs' diplomatic
volumes. Rudenstine accepts, without question, the claim by Ellsberg and
the Times that the decision not to publish material from these
volumes was motivated by patriotism--i.e., by a determination not to
interfere with the ongoing negotiations between Washington and Hanoi. In
fact, Ellsberg and the Times chose to withhold the diplomatic
volumes because those volumes vividly documented the Johnson
Administration's tireless efforts (1964-1969) to bring the war to a
negotiated solution. Embarrassingly contrary to the charges leveled at the
time by Hanoi and the American news media, the diplomatic volumes showed
that Hanoi, not Washington, had at every turn obstructed an early and
peaceful end to the war; Hanoi, not Lyndon Johnson or Robert McNamara or
Dean Rusk, had failed to demonstrate any flexibility or seriousness in
efforts at negotiation; and Hanoi, not Washington, was determined on a
total, military victory in Southeast Asia. But these facts, of course,
were anathema to Ellsberg and Sheehan, who hoped that the PPs would reveal
the U.S. as the aggressor and obstacle to peace in Vietnam.[5]
Despite these shortcoming, the vast majority of Mr.
Rudenstine's conclusions ring true. Particularly compelling is his
overarching interpretation of the Pentagon Papers case as a crucible
for testing the strength and resilience of many elements that are critical
to the democratic order, and as illustrative of "one of the most
important challenges facing any modern-day democracy--the balance between
the legitimate need of government to keep some information secret and of
the people to be informed about their government and matters of vital
importance (pp. 6, 355-356)." And as the publisher claims, the book does
offer a number of stunning revelations. However, this historian found a
set of surprising revelations that the publisher may not have intended.
For instance, for historians of recent America perhaps the most valuable
and revealing sections of the book are those detailing the
behind-the-scenes activities and debates at the Times and Post.
Thanks to interviews with most of the individuals involved, Rudenstine has
turned up a fascinating and disturbing story and a gold mine of
information for scholars interested in the relationship between the press
and the government. For instance, Rudenstine reveals that the Times
and Post journalists were driven to publish the PPs principally by
personal, political, and competitive reasons. Both staffs, for example,
were obsessed with not being "scooped"--when he learned of the Times'
first PPs story, Post editor Ben Bradlee became "desperate" and
ordered his staff to do whatever it took to get the Post a copy of
the classified study. Bradlee was equally obsessed with proving his own
toughness (not unlike Mr. Nixon) by refusing to back down before the
government; and both he and Post publisher Katharine Graham viewed
publication as imperative to the Post's reputation and competitive
advantage.[6]
Equally clear is that the newspapers sought both to obtain
and to publish the PPs because they despised Richard Nixon's
administration and opposed his handling of Vietnam. With this, Rudenstine
brings his own evidence and interpretation full circle: quite
convincingly, he confirms the long-standing image of Nixon's obsession
with the press and conviction that the liberal media was out to destroy
him, and that this sentiment fueled his decision to sue to halt
publication of the PPs. But with equal certainty, Rudenstine shows that
Nixon was right: many of the leading journalists of the nation's two most
important daily newspapers (not to mention a member of the Supreme
Court--Justice Hugo Black) relished the opportunity to deal blows to him
and his policies (pp. 46,53,55,131,134-135,298,303-304). Whether or not
one agrees with the outcome of the legal battle over the PPs, there is
much here to ponder.
The history of the Vietnam War era is full of mixed
messages about the role of a free press in wartime and the relationship
between the news media and the federal government. On the one hand, the
dustbin of history is littered with the corpses of atrocious journalism in
and about Vietnam--from Cam Ne to Ben Suc, and from the Tet Offensive to
Harrison Salisbury's bogus reports from North Vietnam, to name a few. No
less numerous and atrocious, however, were the wartime examples of
attempts by the Executive to mislead and deceive both press and public. At
one point in his rich history of the PPs case, David Rudenstine notes
Judge Gurfein's estimation that the case boiled down to which side one
trusted--the government and its claim to defining the national security
versus the newspapers and their claim to an unfettered First Amendment.
Perhaps unintentionally, Rudenstine makes a good case that
neither side merited much trust. For instance, although the Nixon
administration's concern with the PPs as a breach of national security was
legitimate, its transformation of this concern into assaults on the press,
Daniel Ellsberg, and the Democratic National Committee (among others)
lifted the lid on a Pandora's box of Executive abuses from which the
nation still reels. And although the issue of prior restraint rightfully
stirred the press and its defenders into action, the fact is that the PPs
cases revealed not a crusading but a politically motivated and egotistical
press led by individuals who were willing to flirt with illegality for the
sake of competitive advantage and to enhance the institutional power of
the "Fourth Estate."
Despite his book's unsettling contribution to the history
of the Vietnam era, Mr. Rudenstine concludes on an optimistic note. Unlike
the government and the press, the courts, in his judgment, performed quite
admirably and as the Framers intended: as an arbiter above the political
realm and as the protector of civil liberties and free institutions.
Notes
[1]. Pp. 298-320. Chief Justice Warren Burger and Justices
Harry Blackmun and John M. Harlan voted in favor of the injunction. The
majority was formed by Justices Hugo Black, William J. Brennan, William O.
Douglas, Thurgood Marshall, Potter Stewart, and Byron White. Each Justice
wrote an opinion.
[2]. P. 31. Five copies were kept at the Pentagon, nine
went to the Kennedy and Johnson presidential libraries and seven Johnson
Administration officials: McNamara, Clark Clifford, Paul H. Nitze,
Nicholas Katzenbach, William P. Bundy, Paul Warnke, Leslie Gelb and Morton
Halperin jointly (they were the principal supervisors of the project), and
one went to Henry Kissinger when he became national security advisor.
[3]. Pp. 80-92. One factual mistake also stands out. On
page 62, Rudenstine writes that Times editor A.M. Rosenthal "had
the terrifying vision of President Nixon gathering former Presidents
Truman, Eisenhower, and Johnson together on television to denounce the
Times for jeopardizing the national security." President Eisenhower died
in March 1969, more than two years before the PPs publication.
[4]. The principal sources, of course, are Henry Kissinger,
White House Years (Boston: Little, Brown and Company, 1979), and
Richard M. Nixon, RN (New York: Gossett & Dunlap, 1978). The same
conclusion is offered by scholars not connected with the Nixon
administration: Stephen Ambrose, Nixon: The Triumph of a Politician,
1962-1972 (New York: Simon & Schuster, 1989), Seyom Brown, The
Crisis of Power (New York: Columbia, 1979), John Lewis Gaddis,
Strategies of Containment (New York: Oxford, 1982), Raymond Garthoff,
Detente and Confrontation (Washington: Brookings, 1985). That the
administration managed to achieve much of its diplomatic agenda after
publication of the PPs continued does not necessarily undermine the
legitimacy of White House fears. As Rudenstine himself points out, the
Supreme Court's decision not to enjoin the Times and Post
from further publication of PPs' materials turned on the majority's
opinion that the government "failed to offer evidence [of how publication
of certain PPs material would endanger national interests] as detailed, as
specific, and as compelling as the Court required. But that did not mean
that adequate evidence might not have been presented; it did not mean that
subsequent publications might not reveal injurious information."
Rudenstine, pp. 354-55.
[5]. Pp. 52, 54-55, 64, 85, 123. Opposition to publication
of the diplomatic volumes persisted for more than a decade after the PPs
were revealed. Had Ellsberg's and Sheehan's pretext for withholding them
in 1971 been true, then publication would have followed quickly after 1973
and the conclusion of America's involvement in Vietnam. It was not until
1983, and after frustration of other historians' efforts, that Professor
George Herring succeeded in finding a publisher for the revealing
diplomatic volumes. George Herring, ed. The Secret Diplomacy of the
Vietnam War (Austin: University of Texas Press, 1983).
[6]. Pp. 58-61, 125-131, 135-137, 143. Of interest and
importance to the Post's decision to publish was the fact that it
had just "gone public" as a business enterprise.
Library of Congress Call Number: KF228.N52R84 1996
Subjects:
* New York Times Company -- Trials, litigation, etc.
* Washington Post Company -- Trials, litigation, etc.
* Pentagon Papers.
* Prior restraint -- United States.
* National security -- United States.
Citation: Matthew Taylor . "Review of David Rudenstine, The
Day the Presses Stopped: A History of the Pentagon Papers Case," H-Law,
H-Net Reviews, April, 1997. URL:
http://www.h-net.org/reviews/showrev.cgi?path=19561945160195.
“David Rudenstine’s book
is the first true history of these notable cases. It is also a major
contribution to the rather thin literature on the legal and constitutional
history of the Vietnam conflict… [It] is a readable and worthwhile
monograph that merits the serious attention of both constitutional
historians and student of the Vietnam era.”
Michal R. Belknap, review
of The Day the Presses Stopped: A History of the Pentagon Papers Case,
by David Rudenstine, The American Historical Review 102 (October
1997): 1263-1264.