William & Mary Bill of Rights Journal Volume 2 (1993) Issue 2 Article 5 November 1993 Triangulating the Boundaries of the Pentagon Papers John Cary Sims Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation John Cary Sims, Triangulating the Boundaries of the Pentagon Papers, 2 Wm. & Mary Bill Rts. J. 341 (1993), https://scholarship.law.wm.edu/wmborj/vol2/iss2/5 Copyright c 1993 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj TRIANGULATING THE BOUNDARIES OF PENTAGON PAPERS John Cary Sims* I. INTRODUCTION Through triangulation it is possible to determine quite precisely the distance to a faraway object, or even how far it is to a distant star. The key to the process is taking sightings from two or more vantage points that are a known distance apart.' * Professor of Law, McGeorge School of Law, University of the Pacific. I am grateful for the excellent research assistance provided by David I. Bass. David Rudenstine kindly provided several critical documents that were not otherwise accessible, and also offered detailed and very helpful comments on a draft of this article. I also appreciate the critiques and suggestions provided by Floyd Abrams, Nancy S. Drabble, Daniel F. Fitzgerald, Erwin N. Griswold, Morton H. Halperin, Boisfeuillet Jones, Jr., Brian K. Landsberg, Frederic Townsend, and James F. Woodbury. David C. Vladeck and the Public Citizen Litigation Group handled the lawsuit necessary to secure the release of documents under the Freedom of Information Act. The staff of the Gordon D. Schaber Law Library at the McGeorge School of Law assisted in numerous ways, and Louise Roysdon deserves special thanks for her processing of interlibrary loans. The title of this article is designed to evoke associations with the mathematical process by which two or more sightings or bearings taken from points which are a known distance apart may be used to determine the location of another object. See, e.g., Richard Gillespie, The Mystery of Amelia Earhart, LIFE, Apr. 1992, at 68 (describing efforts to determine the location from which Amelia Earhart made her last radio transmissions by triangulating radio bearings taken at various stations in the Pacific Ocean); Eric Nalder & Gordon Lee, High Noon for Military High Tech-Whiz-Bang Weapons Get First Battleground Test in Deserts of Persian Gulf, SEATTLE TIMES, Jan. 18, 1991, at Al (describing the operation of the Global Positioning System which "operates on the geometric principle of triangulation: calculating location by measuring the distance to other known points"); Christoph Hulbe & Robert Rodseth, How Astronomers Gauge the Distance to a Star, SACRAMENTO BEE, Nov. 2, 1992, at All ("By sighting on a star in, say, January and again in April-measuring the distance that Earth moves between those two months-the baseline becomes a large fraction of the Earth's orbit" and distances may be measured accurately so long as the star is no more than about 70 light years away.). Obviously, the inquiry undertaken in this article cannot triangulate with mathematical precision. However, triangulation also refers, by extension, to the process of using disparate sources of information and attempting to correlate them in a manner that allows reliable conclusions to be drawn about a matter that is not susceptible to direct investigation. See, e.g., HANs ZEISEL, SAY IT WITH FIGURES 252 (6th ed. 1985) (the term triangulation "has come to designate any scientific effort to approach the truth of a 342 WILLIAM AND MARY BILL OF RIGHTS JOURNAL [Vol. 2:2 For all the attention that has been lavished on the Supreme Court's decision in the Pentagon Papers case,2 the boundaries of the case remain largely uncharted. That is not because the language of the opinions is particularly obscure. The fact that the case was disposed of through a cryptic per curiam opinion coupled with a separate opinion written by each of the nine Justices does raise an obstacle to determining the true holding of the case; but, since each Justice expressed rather clearly his own view of the proper constitutional standard, there is broad agreement on the circumstances under which Pentagon Papers would permit a publication to be enjoined because of its potential for damaging the national security. It seems likely that publication may properly be restrained if disclosure of the information at issue "will surely result in direct, immediate, and irreparable damage to our Nation or its people." 3 What has been missing in prior efforts to chart the boundaries of Pentagon Papershas been a precise understanding of what information the Government was attempting to prevent The New York Times and the The Washington Post from publishing. Without the vantage point provided by knowledge of what the Pentagon Papers contained that the Government was concerned about, efforts to stake out the limits of the Court's holding in the case can be no more successful than would be efforts to analyze Cohen v. California without knowing what the offending jacket said,4 F.C.C. v. Pacifica Foundation without knowing the content of George Carlin's monologue,5 or United States v. 0T3rien without knowing what the defendant had burned.6 The principal impediment to using the Pentagon Papers themselves to gain a better understanding of what Pentagon Papers means and how it should be applied has been the sheer magnitude of the materials.7 It has proposition through more than one independently developed research channel."); Carl Bernstein, The Idiot Culture: Reflections of Post-WatergateJournalism, NEW REPUBLIC, June 8, 1992, at 22 ("[T]he FBI and the Justice Department came up with conclusions that were the opposite of our own, choosing not to triangulate key pieces of information."); Edwin M. Yoder, The Reagan-Iran Hostage Link-Evidence for Link Is Very Compelling, ATLANTA J. & CONST., Apr. 23, 1991, at All ("The evidence is circumstantial but compelling.... The stories triangulated."). The triangulation to which this article aspires is of the metaphorical, not the mathematical, variety. 2 New York Times Co. v. United States, 403 U.S. 713 (1971). 3 Id. at 730 (Stewart, J., with whom White, J., joins, concurring). 4 403 U.S. 15 (1971) (jacket bore the words "Fuck the Draft" on its back). ' 438 U.S. 726, 751-55 (1978) (providing a transcript of the monologue). 6 391 U.S. 367 (1968) (defendant had burned his Selective Service registration certificate). 7 Detailed assessment of the impact that publication of the Papers had on the nation's policymaking is beyond the scope of this article. At least as digested and made available to the public by the Times and other commentators, the Papers "accused the architects 19931 PENTAGON PAPERS not been possible to wade through the forty-seven volumes of the study and reach reliable judgments about what material most concerned the Government, how well its fears were supported by the evidence it produced, or in what respects the Justices found the Government's showing to be deficient.8 The thesis of this article is that the additional reference point needed to understand Pentagon Papers is provided by the Secret Brief filed by Solicitor General Erwin N. Griswold in the Supreme Court. Although sealed at one time, most of the Secret Brief is now public. This document, as supplemented by and explained in the Solicitor General's oral argument before the Court, gives Pentagon Papersthe context and concreteness that of the war of having ignored sound intelligence advice against the bombing and of having misled the nation about the depth of commitment and the danger of defeat." DEBORAH SHAPLEY, PROMISE AND POWER: THE LIFE AND TIMES OF ROBERT MCNAMARA 488 (1993). Judge James L. Oakes, who as a member of the United States Court of Appeals for the Second Circuit participated in that Court's consideration of the New York Times branch of the Pentagon Papers litigation, has written that "[c]learly, publication of the Papers played an important role in enlightening the public and bringing the Vietnam conflict to an end some four years later." James L. Oakes, The Doctrine of Prior Restraint Since the Pentagon Papers, 15 U. MICH. J.L. REF. 497, 504 (1982). The Pentagon Papers have also been described as playing a large role in the historiography of the Vietnam War. See, e.g., GEORGE C. HERRING, AMERICA'S LONGEST WAR: THE UNITED STATES AND VIETNAM, 1950-1975, at 283-84 (2d ed. 1986) (the Papers are "the basic documentary source" and are "invaluable" to researchers); George M. Kahin, The Pentagon Papers: A Critical Evaluation, 69 AM. POL. SCI. REV. 675 (1975) (Pentagon Papers study "provides such a mass of significant data as to ensure its enduring usefulness to anyone with a serious interest in the United States' long involvement in Indochina"). It has also been observed that "the Pentagon Papers incident intensified the adversarial relationship between the Administration and the media," which "led directly to one of the most fateful decisions of the Nixon presidency: the creation of the Plumbers." STANLEY I. KUTLER, THE WARS OF WATERGATE 111 (1990). It was the Plumbers' efforts to plug "leaks" and their other illegal activities that ultimately led to the forced resignation of Richard M. Nixon from the Presidency in 1974. 8 It should be recognized that any attempt to identify what the Government was most worried about in the PentagonPapers litigation represents an oversimplification of reality. As discussed below, "the Government" was far from unified in its judgment about the risks allegedly posed by the contents of the study, and it appears that the decision to seek an injunction against the The New York Times was made before any detailed evaluation of the Papers could be completed.