The shocking government leak that changed everything in 1971
Opinion by Nicole Hemmer
On Saturday, the US Justice Department announced that it would no longer seize reporters’ records as part of leak investigations. The announcement came after President Joe Biden told CNN that the practice was “wrong, it’s simply, simply wrong. I will not let that happen.” The shift in policy came as a surprise, since such seizures had happened under both Republican and Democratic administrations — including while Biden was vice president.
Fittingly, the announcement came just a week before the 50th anniversary of the publication of the Pentagon Papers, the treasure trove of leaked documents that revealed the long history of government lies about the Vietnam War.
Even decades later, the story of the Pentagon Papers remains the stuff of high drama — a military analyst on the run from the FBI, the Nixon administration fighting to censor the New York Times, the public revelation of a vast government conspiracy to hide the stalled progress and massive scale of an increasingly unpopular war.
Coming on the heels of the Republicans’ refusal to support an investigation into the insurrection, the anniversary is a reminder of the value of a clear-eyed assessment of wrongdoing in and around government. But it is also a lesson in how the government can work to rebuild trust, a goal that must be a top priority for the Biden administration as it helps the country recover from the past several years of a corrupt and falsehood-filled presidency that culminated in an insurrection.
The Pentagon Papers arrived at a moment of national exhaustion. The tumult of the 1960s — a decade of assassinations, protests, police brutality and conflict — had sagged into the malaise of the 1970s. Backing for the Vietnam War had been exhausted as well; it had not had popular support since 1968. Protests had continued to mount, especially in 1970 after President Richard Nixon announced that the war would be expanded to Cambodia (though the US had been conducting covert operations and extensive bombing campaigns in the country for years).
It was in that moment that Daniel Ellsberg, a military analyst who had worked on the classified history of the war that would become known as the Pentagon Papers, decided that the documents needed to be made public. He quietly approached several US senators, who he hoped could enter the papers into the record without penalty, despite their classified nature. When he made no progress there, he turned to journalists at the New York Times.
When the Times began publishing excerpts of the papers on June 13, 1971, the Nixon administration first asked the paper to voluntary halt publication, then barred it from publishing, the first time in more than a century that the federal government had used prior restraint to censor a newspaper in the United States. When the Washington Post picked up publication on June 18, it too was enjoined. From there the case moved to the courts, where two weeks later, the Supreme Court ruled that the government had not made the case for censorship, and the Times and Post could continue publication.
The story did not end there. Ellsberg faced charges under the Espionage Act, a case that was ultimately thrown out when it was revealed that the government had engaged in illegal wiretapping and other violations of Ellsberg’s civil liberties. Nor did the publication of the Pentagon Papers and their revelations that the government had known it could not win the war lead to a US withdrawal; that would not happen until 1973.
And yet the Pentagon Papers had a profound effect on politics in the United States. The report laid out how extensively the government had lied about the war: lies both to the press and to Congress, over several administrations. And while few Americans sat down to read all 7,000 pages of the Pentagon Papers, they got the overarching message. As H.R. Haldeman, Nixon’s chief of staff, explained in a conversation recorded in the Oval Office in 1971 (and quoting then-White House aide Donald Rumsfeld), the papers showed “you can’t trust the government; you can’t believe what they say; and you can’t rely on their judgment.” That had particular consequences for Nixon, Haldeman continued. “The implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the president wants to do even though it’s wrong, and the president can be wrong.”
The Pentagon Papers would not be the final nail in the coffin of presidential infallibility — Watergate, the secret White House tapes and Nixon’s resignation would deliver that definitively — but they ushered in an era of greater skepticism and new legislation to rein in the power of the presidency. In the years that followed, Congress carried out extensive investigations into intelligence agencies, and passed a raft of new laws that strengthened ethics laws, the Freedom of Information Act, and congressional oversight of government surveillance programs.
But the post-Pentagon Papers era did not see an end to the war on whistleblowers and the journalists who published their revelations. In the wake of the September 11 attacks, that war escalated, spreading over the Bush, Obama and Trump administrations. Under Bush, New York Times reporter Judith Miller was jailed for contempt for refusing to reveal the source of a leak. The Obama administration inherited several leak prosecutions from the Bush administration and undertook a record-breaking number of its own. And it was recently revealed that the Trump administration seized records from the New York Times, Washington Post and CNN in its leak investigations.
The Biden administration has taken a first step toward rolling back that war on whistleblowers — a necessary step for beginning the difficult work of restoring faith in government. That is, of course, a much larger project. In addition to the ethics laws that Biden called for during the 2020 campaign, the nation needs a renewed set of “sunshine” legislation. Freedom of Information Act requests from journalists and researchers to access government documents are regularly held up by long, expensive battles over classification, and the Foreign Intelligence Surveillance Act courts, which oversee surveillance warrants for foreign spies and now data collection of US citizens, have devolved into a rubber-stamp operation for the intelligence community, lacking robust oversight.
The Biden administration also needs to tackle the government’s overclassification problem. Far too much material that should be in the public sphere has been walled off by an aggressive classification regime that locks away information that poses no threat to national security.
Americans did not lose faith in government solely because of the bad acts revealed in the 1970s. The right has carried out a decades-long campaign to undermine and discredit the US government. But while there is not much Biden can do about those partisan attacks, he can address the problems revealed by the Pentagon Papers, of government officials not only lying to the country but hiding behind a veil of national security and top-secret classifications to conceal the truth. If he could begin dismantling that system, he could begin the process of rebuilding trust in government, a necessary foundation for a healthy democracy.
