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Return to Secret Briefs Introduction
The Griswold secret brief (annotated
"Reviewed for Declassification" with dates) identifies 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 the reader may
judge for himself.
In the discussion that follows the reader should keep in mind that the
relevant legal standard articulated to the Supreme Court by Erwin Griswold,
the Solicitor General of the United States, is that the identified material
would, if revealed, cause direct and immediate damage to the national security
of the United States.
NOTE: The first page reference in each case refers to relevant pages
of Solicitor General Griswold's secret brief. Additional references (linked
below) are the relevant portions of the Pentagon Papers study that Griswold
cites as evidence in his brief. Since in most cases we have used pages
from the Senator Gravel edition of the Pentagon Papers (rather than the
version declassified by the House Armed Services Committee) the page references
will not always match those cited by Griswold but are, in fact, correct.
Griswold Claim No. 1 (pp. 4-5)
The Griswold secret brief starts off with a blanket claim for damage
assumed to result from the release of volumes of the Pentagon Papers dealing
with the diplomacy of attempts to open negotiations from 1964 to 1968 (shown
here as VI-C-1 through VI-C-4 – a two page summary
of the four volumes was included in the 21 June 1971 affidavit
by William Macomber, Deputy Under Secretary of State for Administration,
in the Washington Post case). Probably the most important point
to be made is that these diplomatic volumes were not part of the leak,
and were never released by Daniel Ellsberg or anyone else. Ellsberg has
made clear in public forums and commentaries that he refused to include
these volumes in the leak because he feared release would give the Nixon
administration an excuse to halt ongoing negotiations for a Vietnam settlement.
At trial the government professed not to know exactly what portions of
the Pentagon Papers had been leaked, and the courts agreed to proceed on
the basis of assuming all the original documents were compromised. In point
of fact, however, neither specific nor general damage could have resulted
here and the argument was moot.
Griswold Claim No. 2 (p. 4)
The first specific claim is that the diplomatic volumes contain derogatory
comments that might be offensive to nations or governments, in particular
U.S. allies with troops in South Vietnam, principally South Korea, Thailand,
and Australia. Thailand is singled out as critical because 65% of U .S.
air sorties over Vietnam were then being launched from U.S. bases in that
nation. The diplomatic volumes were, in fact, largely declassified under
the Freedom of Information Act in 1978; while there are some significant
deletions, probably more than 99% of the material was in fact released.
In the diplomatic papers as released there are only five references to
Australia, two to South Korea, and one to Thailand in a text of more than
1,000 pages. Most of them are notations that one or another country had
or had not been briefed on some initiative. None is derogatory.
The Griswold brief makes the claim that the pace of U.S. withdrawal
from Vietnam would have to become slower if the diplomatic volumes were
released. The claim is purely speculative. It is equally likely that, faced
with the withdrawal of its allies, the U.S. would have withdrawn more rapidly
itself.
Griswold Claim No. 3 (p. 5)
The Griswold Brief asserts that there are specific references to the
names and activities of CIA agents "still active in Southeast Asia.” Almost
all the CIA officers identified in the documents were in fact high level
officials like Richard Helms, John McCone, Allen Dulles, and Richard Bissell,
publicly known officials. The only clandestine services officer identified
is Lucien Conein, active in plots to overthrow Ngo Dinh Diem, and by 1971
Conein was no longer with the CIA. If accurate, the assertion in the government's
brief can only have referred to South Vietnamese officials who were on
the CIA payroll as sources of information. Those persons, however, are
referred to in thee documents in their actual Saigon government capacities
and discussed taking various actions. They are not identified as CIA agents.
The additional claim in the brief that currently continuing CIA operations
are referred to in the Pentagon Papers can be true only in the sense that
the war, including such features as pacification (which had a CIA component),
or efforts to block the Ho Chi Minh Trail, and so on; itself continued.
The Griswold brief additionally claims there are "references to the
activities of the National Security Agency." In fact there is a document
(cited elsewhere in this paper) that refers to a number of National Security
Agency personnel included in a 1961 deployment increment (15 men). There
is also a statement in the text of the Pentagon Papers that covers the
early (1961-1963) part of the war that the U.S. is monitoring North Vietnamese
radio transmissions. But the papers have no detailed discussion of programs,
methods, results, procedures, management issues, ongoing efforts, and so
on. This is hardly surprising since Pentagon Papers analysts were not cleared
for communications intelligence data nor was the study intended to cover
this matter. That radio intelligence was a "currently continuing" activity
(Griswold brief, p. 6) is correct, but in the same sense as the last point,
this could convey no special knowledge to Hanoi. The North Vietnamese were
aware long before 1971 that U.S. forces were listening in on their radio
transmissions, and their knowledge of U.S. activities was far more detailed
than anything they could learn from the Pentagon Papers.
No locations are given in the brief for material that is actually compromising
in either of these areas.
Griswold Claim No. 4 (p. 6; ref to V-B4(a)
pp. 249-257, 259-311)
The Griswold brief objects to the disclosure of contingency plans of
the Southeast Asia Treaty Organization (SEATO), most specifically SEATO
Plan 5. The SEATO plans referred to
were 1961 plans for blocking the lower panhandle of Laos. Not only were
these not "continuing military plans" as asserted in the brief, but they
involved absurdly small numbers of troops, given the North Vietnamese dispositions
in Laos in 1971, and would have led to major military debacle if implemented.
More important, by 1971 the deployment of any number of U.S. troops into
Laos was illegal under United States law. Here the U.S. government was
in a position much like President John F. Kennedy with the New York
Times revelations of CIA preparations for the Bay of Pigs invasion
– the press would have been doing the government a favor by publishing
the leak. In addition, the U.S. government had just finished supporting
a major South Vietnamese invasion of Laos which had been roundly defeated
(Lam Son 719); the assertion in the Griswold brief that there was any secret
left about this option was disingenuous. Finally, by 1971 the SEATO alliance
was moribund and the claim that any SEATO contingency plan might be taken
off the shelf and implemented was farfetched.
Notwithstanding its claims that this material must remain secret, the
United States government published it in full in its own edition of the
Pentagon Papers.
Griswold Claim No. 5 (p. 6; ref to IV-C-6
p. 129)
[NOTE: Link includes excised and full versions of IV-C-6
p. 129]
The Griswold brief fears giving Russian intelligence insight into U.S.
intelligence capabilities by revealing a U.S. estimate of Soviet attitudes
and intentions toward the Vietnam war. In fact the Pentagon Papers quotes
only one paragraph of the estimate (SNIE
11-11-67, which is not, in fact, identified in the leaked documents)
which says that the Russians might send volunteers or crews for aircraft
or defense equipment to Vietnam, or break off negotiations with the U.S.
on various subjects. The mining or blockade of the North Vietnamese coast
is predicted to challenge Russian leaders. An examination of the underlying
document, the SNIE, will demonstrate that it is pitched at a similar high
level of generality. The Griswold brief's assertion that the estimate "is
in large part still applicable" is accurate in the sense that any simple
enumeration of broad options will always contain the range of actions that
are possible in a situation.
Griswold Claim No. 6 (p. 7; ref to IV-C-6(b)
p. 157)
The Griswold brief asserts that the revelation of a footnote
describing the judgment of the United States Intelligence Board on Russian
capacity to supply various types of weapons to North Vietnam "has much
about it that is current, and its disclosure . . . could lead to serious
consequences for the United States." The source text is a May 19, 1967
draft memorandum from Secretary of Defense Robert McNamara to President
Lyndon Johnson which contains a footnote describing the United States Intelligence
Board (USIB) opinion. The "USIB estimate" is actually a reference to SNIE
11-11-67, described above. That estimate cites various kinds of
weapons that Russia was capable of giving Hanoi, including artillery, aircraft,
rockets, patrol boats, and so on. Again, these are in the nature of an
inventory of possibilities. Neither the footnote nor the underlying intelligence
estimate contains any numerical predictions whatsoever. It remains an enumeration
of broad Russian options. Although Department of Defense censors deleted
the offending footnote at the location cited in the Griswold brief, in
their own edition of the Pentagon Papers they permitted publication of
the identical note (see IV-C-7(b) page 47).
Griswold Claim No. 7 (p. 7; ref to IV-C-6(b) p.
168)
The Griswold brief asserts that disclosing that the United States ever
considered a nuclear response in the event of a Chinese attack on Thailand
"could have very serious consequences to the security of the United States."
The document containing language about nuclear weapons use is not a Joint
Chiefs of Staff memo of May 27, 1967, as cited, but JCSM
288-67, of May 20, in which the Joint Chiefs discussed U.S. worldwide military
posture. This discrepancy in dates is probably a typographical
error in the original legal brief. The statement about nuclear weapons
arose in the context of a discussion of a U.S. invasion of Cambodia, which
was illegal under U.S. law by 1971. Hanoi might counter with more forces
in Laos, leading the U.S. to send extra troops to Thailand, and China to
attack the Thais. All of these possibilities were exceedingly remote.
The language about nuclear weapons in the Joint Chiefs memorandum was
not unusual; that is, with limited ground forces in the U.S. military,
it was customary for the Joint Chiefs to invoke nuclear weapons in almost
all discussions of war with China. Throughout the 1950s, during the Eisenhower
administration's "New Look" national security policy, nuclear weapons were
deliberately built into the contingency plans. In addition, there were
four Sino-American crises during that interval, all of which involved U.S.
nuclear threats against China (Korea 1953; Tachen 1954-55; Taiwan Straits
1958; Quemoy/Matsu 1960), plus the Dien Bien Phu crisis of 1954, in which
nuclear weapons were brandished by the U.S. secretary of state with language
about retaliation "at places and with means of our own choosing," which
became known as the doctrine of massive retaliation. Almost identical language
about nuclear weapons occurs in JCS and other documents in the Pentagon
Papers about the earlier period which censors did not bother to delete
from the government edition of the Pentagon Papers. In any case, for the
Griswold brief in 1971 to argue the serious consequences of this item in
the Pentagon Papers requires assuming the Chinese had paid no attention
to all these events and public pronouncements by the United States. If
there was damage to the national security here, this occurred long before
1971 and the Pentagon Papers were not the source of it.
Griswold Claim No. 8 (p. 7; ref to IV-C-7(b)
pp. 161-163)
The Griswold brief asserts that revelation of this source material,
a
cable to Washington by then-ambassador to Moscow Llewellyn C. Thompson
in March 1968, would impair Thompson's effectiveness and provide
the Russians valuable intelligence information. The source text is Moscow
cable 2983 of March 1, 1968, in which Ambassador Thompson comments on the
likely Russian response to a range of U.S. options in Vietnam, things from
the mining of Haiphong harbor to possible invasions of North Vietnam, Laos
or Cambodia; to increasing troop levels in the South or more bombing of
the North. The intelligence Russians could learn from this cable is the
set of options the U.S. was considering in 1968 plus Thompson's assessments
of Russian reaction. The set of options could not have been that useful
because, much like the transparency of Russian options toward Hanoi for
U.S. intelligence, American options had not changed since the beginning
of the big unit war. Moreover, by 1971 every one of those options save
the mining of Haiphong had been played out and U.S. withdrawal was accepted
and publicly known policy. Llewellyn Thompson's opinions of the options
were possibly useful as an index of his thinking, as an indicator the Russians
could use to gauge how well Thompson had understood the Russian position
in 1968, or as an indicator to the Russians that Thompson was important
enough to Washington that the U.S. would share with him its most secret
Vietnam plans.
None of these possibilities lends any support to the claim in the Griswold
brief that publication of the cable would "impair" Thompson's effectiveness
as an arms control negotiator, "which surely directly affects the security
of the United States." On the contrary, publication most likely encouraged
Russians to a high regard for Ambassador Thompson. In any case the entire
issue was specious, through no fault of Solicitor General Griswold, because
the arms control negotiations were directly run and dominated by the White
House in the person of national security adviser Henry Kissinger. The Russians
surely knew that; the effectiveness of Llewellyn Thompson was a false issue.
Griswold Claim No. 9 (p. 8; ref IV-C-9(b)
p. 52)
The Griswold brief declares that there was a grave risk of adverse
reactions from South Vietnam and Laos if the release of the Pentagon Papers
revealed that they had held discussions related to possible South Vietnamese
military action in Laos. The source text,
in its entirety, reads: "In May talks started between Lao and GVN [i.e.
South Vietnamese] military staffs. The occasion was planning for barrier
extension westward, but Washington realized at once that there was little
the US could do to limit the contacts to that subject." There was no explicit
discussion in the Pentagon Papers of South Vietnamese action in Laos, and
no evident reason the passage would be offensive, other than revealing
the fact of the talks. In 1971, however, coming after the (failed) South
Vietnamese invasion of Laos in Lam Son 719, the alleged problem of a breach
of confidence had only academic importance.
Griswold Claim No. 10 (pp. 8-9)
The Griswold brief threatens grave damage from the revelation of communications
intelligence secrets, making the enemy aware of significant U.S. intelligence
successes, permitting them to assess U.S. communications intelligence capability,
and to impair current military operations. This is a strange claim. To
begin with the Pentagon Papers carried a "Top Secret" level of classification
within the Department of Defense. By itself that classification grade usually
excludes communications intelligence information, which exists in what
the United States terms a "special compartmented" category and carries
a separate codeword. There was no communications intelligence in the Pentagon
Papers in the first place. As for directly affecting U.S. operations, the
character and content of U.S. operations had completely changed between
1968 and 1971 from large-unit clearing efforts to small scale patrols in
support of pacification. The specifics were all different by 1971, only
the techniques remained the same, but the possibility of damage to national
security is mooted by the absence of communications intelligence from the
documents.
The United States Government deleted from the Washington Post’s
brief commenting on the in camera evidence references to three passages
in the documents, and the passages themselves, that refer to organization
and administration of communications intelligence. All these references
relate to the spring of 1961, when Deputy Secretary of Defense Roswell
Gilpatric headed an interagency task force on Vietnam policy. The deletions
occur in successive drafts of the task force report. The first is a recommendation
to “Expand the current program of interception and direction finding covering
Vietnamese Communist communications activities in South Vietnam, as well
as North Vietnamese targets,” and asks for authority to conduct these activities
on a joint basis with South Vietnamese. (The source document was declassified
in 1977). The second deletion has nothing to do with communications intelligence,
and recommended an additional 40 personnel for the CIA station in Saigon
– for paramilitary and covert action programs. The third deletion was of
a recommendation to send 15 communications intelligence specialists to
Vietnam to help train South Vietnamese counterparts. No conceivable damage
to the national security of the United States would have resulted from
the exposure of this material, which had nothing to do with either U.S.
codes or foreign codebreaking. Only the reflexive desire to keep secret
all information related to intelligence could be served by deleting these
items from the government edition of the Pentagon Papers. These were also
exceedingly thin reasons to keep secret all forty-seven volumes of the
Pentagon Papers, as was the government’s proposed remedy in this court
case.
Griswold No. 11 (p. 10)
The Griswold brief mentions prisoners of war to invoke the claim that
breaking the confidentiality of diplomatic communications would adversely
affect negotiations to bring them home. The confidentiality of diplomacy
argument is one that the Nixon administration made very strongly, bringing
in diplomat William B. Macomber who made it the centerpiece of his testimony
and affidavit, and even actually soliciting comments from foreign governments
for use in a legal brief. These were essentially political arguments, however.
A wide variety of foreign governments had made public their roles in Vietnam
negotiating efforts, and even the secret give-and-take was already on the
record in a variety of books and news articles. (In particular see David
Kraslow and Stewart H. Loory, The Secret Search for Peace in Vietnam, and
Chester Cooper, The Lost Crusade: America in Vietnam.) As we now know,
moreover, the diplomatic volumes of the Pentagon Papers had never been
compromised in the first place. Even if they had, in more than a thousand
pages of text the diplomatic volumes have only eight references to prisoners
of war. It is difficult to avoid the conclusion that the prisoner issue
was incorporated into the U.S. legal brief primarily to invoke an issue
that would resonate with the justices.
PART II: SPECIAL APPENDIX FOR THE SECOND
CIRCUIT
Return to Secret Briefs Introduction
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