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The Nixon Tapes and the Supreme Court Tapes

The Secret Briefs and the Secret Evidence



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In the rapid progression of the Pentagon Papers from newspaper revelation to court case to judgment by the Supreme Court of the United States during a few weeks in June 1971, the Nixon administration failed to stop the presses. The Justice Department made two major submissions to Courts on exactly what information in the history "United States-Vietnam Relations 1945-1967" was so sensitive that it justified keeping secret the entire forty-seven part history. One of these submissions was to the Supreme Court made by Erwin N. Griswold, Solicitor General of the United States, which identified 11 drop-dead secrets. The other, which Griswold incorporated into his text, was made in New York City to the United States Court of Appeals for the Second Circuit, which identified 17 irreparably damaging secrets.

Here the Archive examines the government's evidence, as opposed to its legal arguments and justifications, as to why it wanted the Department of Defense study to remain shrouded in a cloak of secrecy, with a detailed commentary with documents from the 11 and 17 separate claims.

Please note that this examination of evidence is in no way intended to bypass or moot the legal arguments in this first amendment case. The Supreme Court decided against the government's demand for the right to impose prior restraint on newspapers intending to publish leaked secret documents and news reports based upon them. The legal principles are both important and sound. Going before the Courts, however, both the New York Times and the Washington Post, contended that they were not claiming exemption from all prior restraints, but rather that the U.S. government's claim was not strong enough to justify Court action to protect the secrecy of the documents. Nevertheless, the U.S. government asserted that the information in the Pentagon Papers was indeed so sensitive that in fact a prior restraint was fully justified.

A few words are in order at the outset about the government briefs setting out the evidence, the core of which is found in two key documents. The Griswold secret brief (annotated "Reviewed for Declassification" with dates) is the capstone document. It continues to have deletions in it to this day. As Griswold recounted the process in the oral argument, this brief identified 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 readers may judge for themselves.

The second document is a "Special Appendix" submitted on June 21, 1971 to the United States Court of Appeals for the Second Circuit by the U.S. government. The appendix makes a set of allegations regarding evidence drawn from the testimony of several U.S. officials who appeared in New York court hearings, followed by claims about the impact on current military operations of publication of the Pentagon Papers. The heart of this document is a list of seventeen references to Pentagon Papers material each with an explanation of how their publication would reveal secrets of great import. That the U.S. government considered this a vital part of its claim is demonstrated by the fact that Solicitor General Griswold included the same items in his "Supplemental List" to the Supreme Court and also separately submitted the "Special Appendix" document in addition to his court briefs. In this examination of the secret brief, we have identified and commented on each of the 17 items in the government's "Special Appendix" to the Second Circuit.

One note on the items in this collection: In the course of the court case on the Pentagon Papers the U.S. government promised to do its own declassification review of the study. It did so, and exercised free reign on decisions to delete material from its edition, which was published as a document of the House Armed Services Committee in 1972. In connection with the "Special Appendix" documents we have made an effort to reproduce the items from the government edition of the Pentagon Papers unless the materials were so lengthy this was not practical. Where material from the government edition appears, that means the United States Government, in its own declassification decisions made in 1971, in the immediate aftermath of the Pentagon Papers court case, did not feel the item in question was sensitive enough to keep secret. In cases where material has been deleted from the House Armed Services Committee edition, the deletion is reproduced along with the relevant page or pages of the Senator Mike Gravel edition of the Pentagon Papers so that the reader can see exactly what the deletions were.

Follow the links below for analysis of the secret evidence:




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