Editor’s Note: In the wake of the release of the Pentagon Papers, for our September 1971 issue, CJR asked Ben Bradlee and other editors at The Boston Globe and The New York Times about their decision to publish the documents and being enjoined by the government.
When the opportunity to publish from the Pentagon Papers arose, what qualms, if any, did the Post have?
Our decision-making process was in two parallel channels. One, of course, involved the group that went after the documents themselves, culled them, decided what stories and what parts of stories to include. The second parallel segment was on the question of the law—the First Amendment, the various codes and statutes.
Before we were very far into the documents, editors and reporters discussed the point that we were dealing with information that could be genuinely sensitive. We just decided that it was in the nature of the responsibility of a major newspaper not to publish anything that would do irreparable harm to the security of the United States. I am not talking about embarrassment. I am not talking about catching public figures in deceit or lies. We were not going to publish any code information. We were not going to publish the names of undercover CIA agents, even though we presumed that any intelligent CIA man would have assumed those people were compromised and gotten them into another line of work. This was a judgment we made early; this was a judgment we stuck to.
The other part of the discussion of law concerned the fact that the Government had moved to enjoin. The statute states that it applies to anyone who has reason to believe that publishing information would do irreparable harm. Unlike The New York Times, we did have reason to “believe” that. A case had been made; the Secretary of State had said it; the Attorney General had said it; and a judge in New York had enjoined a paper. But we felt that we were not under the jurisdiction of the New York Court, obviously. And that principle we were fighting for was that we could not be restricted by the government to running only that information that the Government said we could. That was the issue: Who was to decide what should or shouldn’t be published?
Once the Government said we could not print, the issue was joined. Even when the Supreme Court lifted the total stay of the Court of Appeals and narrowed it to only the so-called special appendix in the New York Case, plus any other supplementary material that they would file by 5 o’clock Friday, we felt that we shouldn’t print anything, because to comb through what we had and take out what the Government specified, without proof, was unacceptable.
Do you have sources in the academic community or elsewhere to whom you went to check whether material was indeed sensitive?
Here was the most impressive thing you have ever seen. When Assistant Secretaries of State or Defense insisted, in camera, that publishing top secret documents would do irreparable harm—which is what they were trying to tell us—Chalmers Roberts and George Wilson could cite chapter and verse on where information had already been published: even page numbers of books. Chester Cooper’s book, the Kraslow-Loory book, Robert McNamara’s testimony—time and time again. We retained a cryptographic expert on the question of compromising of codes, in case that became an issue. The New York Times retained the same man, David Kahn, who wrote The Codebreakers.
I don’t say that we are completely qualified to determine these matters, but we are better qualified than people realize—and we are patently better qualified than the government witnesses. Fourteen of nineteen judges agreed. In fact, Deputy Undersecretary of State William Macomber said the other day that no newspaper had published anything which had endangered national security. That’s what the fight is all about.
Because The Washington Post owns broadcast stations, do you consider yourself in double jeopardy, because of a question whether a convicted felon can hold a license?
I think a lot of the press coverage lost track of the size of the stack of chips that went out on the table. We own radio or TV stations in Washington, Miami, Jacksonville, and Cincinnati. You tell me the value of those licenses. This is apart from the fact that we were in the middle of a stock offering. I didn’t know it at the time, and nobody told me—which is to their credit—that there is a clause in the underwriting that if there is a major change in circumstances—and an indictment by the federal government would certainly be a major change—the underwriter can get out of his agreement. People ask, Did you discuss all this with your lawyers? You can be sure we discussed it at length.
Do you think that the Court’s decision left you in a better position or a weaker position vis-a-vis covering the Government?
I think we mustn’t kid ourselves about how much of a landmark decision, what broad guidelines, what new law the Justices made. Their ruling was very narrow. In this case the Government did not meet its severe burden of proving that prior restraint was justified. Such a case probably won’t arise again. Where are you going to get a case involving some forty volumes?
I would think that after the rulings of the circuit courts, as well as the Supreme Court, the Government will find it more difficult to attempt prior restraints. If they go after us on criminal grounds, if they get a conviction, I think it will scare all of us out of our assumptions. I don’t think they are going to get a conviction.