(Outtake by Daniel Ellsberg from Secrets: A Memoir of Vietnam and the Pentagon Papers; it fits in between pp. 408 and 409. Part of this outtake was adapted from Ellsberg’s 1972 book Papers on the War)
After entering the Post Office Building, Charlie Nesson, Leonard Boudin, Patricia and I took the elevator to the eleventh-floor offices of the U.S. Attorney, Herbert F. Travers, Jr. Apparently, I wasn’t even under arrest yet. They were going along with the script that I was surrendering to the U.S. Attorney, right on the schedule my lawyers had promised. (We had arrived at the Square at almost exactly ten o’clock). I introduced myself to Travers and said that I was appearing in response to the arrest warrant. FBI agents in the office placed me under arrest and took me to the U.S. Marshal’s office for photographs and fingerprinting. Patricia and my lawyers went off to the courtroom where I would be appearing for arraignment.
It was the first time I’d ever been arrested. (The next time, for an action of civil disobedience, was five years later, at the Pentagon. Since then I’ve gone through this process between sixty and seventy times.) The first time I’d stood for a mug shot. But I was an old hand at being fingerprinted. I’d given my prints in the Marine Corps, and every time I got a new clearance, at RAND, the Defense Department, the State Department. (1)
When I’d cleaned off my fingers, we went up a flight to the courtroom on the 12th floor, with two Federal Marshals holding my arms tightly (in lieu of handcuffs).(2) With Patricia in the spectator section, I sat behind a brass rail while Leonard Boudin debated Assistant U.S. Attorney Lawrence P. Cohen over bail. Cohen said that the “severity of the crime as measured by the punishment”‘—a possible 10 years in prison and a $10,000 fine—justified setting bail at $100,000. He argued that was further required because I had eluded the FBI over the weekend instead of turning myself in immediately on issuance of the warrant. “This suggests the defendant has the resources to remain in hiding and frustrate this court.”
Boudin asked in contrast that I be released on my own recognizance. Magistrate Princi expressed a concern that if the defendant was proved guilty of being insensitive to laws protecting secret documents, then “might he not be also insensitive to his obligation to appear if he found things were not going as he anticipated.” Boudin’s answer was to read a long list of my accomplishments and former positions, including special assistant to the Assistant Secretary of Defense and special assistant to the United States Ambassador to Vietnam, as evidence of my reliability. Of course, that recital seemed to cut two ways. Recent events leading to my seat at the moment behind the brass rail might suggest that my reliability, from some points of view, was not what it had once been. Furthermore, my lawyer was not entirely candid when he went on to say that the reason I had waited until today to surrender was to avoid the “Roman holiday” atmosphere that sometimes surrounded major FBI arrests. If that had been my objective, it would not have seemed very successful in view of the scene in the Square below. But the magistrate seemed, after all, to be searching for a reason not to have to set bail for me. He asked my lawyers if they would be responsible for my later appearances.
That wasn’t the kind of stance I wanted to take. I didn’t want to hide behind lawyers. And in explaining my actions or talking about the war or the contents of the Papers, I didn’t want my public statements from now on to be framed by lawyers, or to have that appearance. From the beginning, I had Leonard Boudin’s agreement that I would be my own spokesperson, on all matters that weren’t legal technicalities. Other lawyers, less in tune with our politics and unconcerned about political objectives in the trial, would have wanted to clamp a lid on me and might have demanded to be the sole channel for communications to the press. I could never have accepted that. But the issue never arose with Boudin and Nesson, or the others who joined our defense team.
My lawyers understood that this was a continuous political action from my point of view, with political objectives. That was true not only of the initial actions and my public statements but of key aspects of the conduct of my legal defense in the trial. I had to be free to talk to the press and the public and to be the judge of what I wanted to communicate. This was one of those moments. One of my main themes was to encourage officials and former officials to acknowledge their personal responsibility for their actions, even in the face of superior orders. And on this day, I was trying to ram home at every possible opportunity that I bore sole responsibility for the actions that had brought me here, not shared with any former colleagues. Before my lawyers could respond to the magistrate’s suggestion that they might be responsible for me, I stood up and asked permission to address the court. I said, “Your honor, no one here can take responsibility for me. I am responsible for myself, for my own actions. I ask that my own responsibility for my appearance be accepted.”
I was just trying to make the point. I didn’t expect it to be accepted. I had already assumed I would have to spend time in jail while bail was being arranged, and I suspected that my intervention now to reject the magistrate’s alternative made that even more likely. But Princi said, “I am going to take you at your word. I am going to put you on $50,000 bail without surety.” Releasing me on this “personal recognizance bond” meant I didn’t have to put up any cash or bond, though I would be liable for the full amount if I missed any court appearances. He also ordered that my passport be turned over to the court. He said, “You’re going to walk out and be free.” It was a nice beginning to our two years of court proceedings. Princi set July 15 for a hearing on my removal to Los Angeles, where the case was expected to be tried.
Patricia and I left the courtroom and went down to face a bank of cameras and reporters in the midst of the crowd still filling Post Office Square. I urged everyone to read the documents for themselves, and repeated my hope that the disclosures would help free ourselves from the war. Someone asked if I had any regrets. I said certainly not. I said I was very pleased with the way the newspapers had defended the First Amendment. “As a matter of fact, it’s been a long time since I had as much hope for the institutions of this country. When I see how the press and the courts have responded to their responsibilities to defend these rights, I am very happy about that as an American citizen.”
As I finished speaking to the crowd of press outside the Post Office Building, a New York Times reporter identified himself and asked if he could speak to me separately. I had a moment’s hesitation, remembering Lloyd Shearer’s warning about giving exclusives, that seeming to favor one outlet over another would make other journalists angry. But the Times did seem to have a special claim in my case, even though many of the nineteen papers that had followed their lead were also represented in this throng. The reporter ended his story about Monday’s events:
“After having consented somewhat reluctantly to the interview, [Ellsberg] discussed his motives for publicizing the documents. ‘I have wanted for about two years to try to raise the issue of personal responsibility and accountability of officials,’ he said, ‘not to punish but to make current officials conscious of their responsibility.’ He took pains to dispute press reports that he was racked by guilt over his role in Vietnam, where he was connected with the pacification program.
“‘The simple fact is that I never felt tortured by guilt by anything I did in Vietnam,’ he asserted. ‘The kind of thing I do blame myself for is not informing myself earlier than I did about the origins of the conflict.’ He went on to say that his knowledge of the contents of the study was what drove him because it gave him a responsibility.”
Of course, it was more than my reading of the Papers that had given me a sense of responsibility. It was my whole association with the war. In these, my first public comments on my motives after the release of the Papers, I was trying to send a message to my former colleagues, former officials and researchers and consultants on the war and some still serving as insiders. It was a message about responsibility that I hoped might encourage some of them to do something like what I had done, to go beyond what they might otherwise have thought of doing, ideally to tell the public what they might know, with documents, about current policy.
I must say that my hopes of inspiring some insiders to follow my example didn’t seem to meet with much success, so far as I knew. I suspect that failure reflected less the shortcomings of my own efforts than on the success of the Administration’s efforts—precisely by putting me on trial facing heavy criminal penalties—to warn them against imitating me. Still, I could have been much more explicit in urging current and former insiders to do just that, and in seeking out individuals and addressing groups with that appeal, and in retrospect I wish I had done that. I feared then and later that it would seem self-serving and invidious for me to make that point—”You should consider doing what I did”—and so it would, no doubt. But they needed to hear it from someone, and regrettably, no one else was telling them that.
The Administration’s aims in this area were exactly opposite to mine. Their decision to bring an unprecedented criminal prosecution was in large part motivated by their need to dampen the encouragement to potential imitators of my open and unapologetic challenge to the norms of the secrecy system. No doubt Nixon and Kissinger failed to perceive that their secret Vietnam policy was foolish, reckless and hopeless, but they did understand that many others would see it that way if, by virtue of new leaks, it ceased to be secret from the American public. In this respect of discouraging revelations by others, my prosecution may have been a success, even though some Administration officials may have foreseen that they might not win or sustain a conviction.
In these very first public comments on June 28, my focus on feelings of personal responsibility as a spur to action and revelations reflected a “sermon” I had given just over a month earlier. I had been invited to address the congregation of the Community Church in Boston, which had a long history of speakers on civil rights and antiwar issues. On Sunday, May 23, I chose the topic, “The Responsibility of Officials in a Criminal War.” That focus, in turn, had been stimulated just the previous week by reading an interview with Albert Speer—third man in the wartime Nazi hierarchy—in, of all places, the current June issue of Playboy. That interview had sent me back to his memoir Inside the Third Reich, published that year, 1971. I ended my talk that Sunday by reading aloud a number of excerpts from that book and the interview. It was unusual to be reading from Playboy in a church sermon, but this was an unusual interview; in fact, I’ve never seen one comparable to it, certainly no by American cabinet officer has ever given an interview like it.
Speer had spent twenty years in Spandau Prison for his service to Hitler in charge of war production. He had put the time to good use in reflecting on his experience and how he had come to persist so long in so mad and wrongful an enterprise. None of my former superiors or colleagues had had such an opportunity (though Nixon did his best to provide it for me; I was the only American civilian official put on trial for activities related to the Vietnam War). We all could benefit a great deal, it seemed to me, from his reflections, despite the great and obvious differences in the two historical episodes.
Speer was the only one of the defendants at the Nuremberg trial who accepted full responsibility for his actions and for those of the regime. He included those acts in which he had taken no part, even those he said he had been ignorant of at the time. His fellow defendants were amazed by this position, and his own lawyer urged him not to take it. Ever since that trial there have been some observers who felt that by claiming ignorance about the Holocaust yet acknowledging culpability for it nevertheless and showing remorse, Speer was simply following a clever and cynical strategy to minimize his guilt and evade hanging. But that’s not at all the conclusion I reach from his writings or the Playboy interview. These made a very strong impression on me when I read them in mid-May, 1971, at a time when I was still working and hoping imminently to bring the Pentagon Papers to the public, either through the Times or McCloskey or Gravel. They were much in my mind, not only when I spoke to the audience at the Community Church—a surprising number of whom, it turned out, were refugees from Hitler’s Germany—but a month later when I first faced the press outside the courthouse.
It seemed to me that Speer was setting for himself, and implicitly for others, an unfamiliar and very high standard of accountability. Nevertheless, once you thought about it, it was hard to reject. Taken seriously, it had very challenging implications for myself and for my former colleagues.
Speer was saying that his (claimed) ignorance of certain criminal operations of the regime in which he had been a high official was not a defense, that it did not even attenuate his own responsibility for these crimes. How could that be? He said it was because he had been in a position to know about them, that he could and should have known, and that in effect he chose not to know. And he said that such willed ignorance, far from being an excuse for inaction against such evils, conveyed full responsibility for them (just as if he had fully known, and had failed to do all he could to expose and prevent them). Few Americans have been willing to take that standard seriously; many, both inside and outside government during the Vietnam War, including myself, would stand condemned by it.
He writes:
“[N]ot to have tried to see through the whole apparatus of mystification was already criminal. At this initial stage my guilt was as grave as, at the end, my work for Hitler. For being in a position to know and nevertheless shunning knowledge creates direct responsibility for the consequences from the very beginning. . . .
“In the final analysis I myself determined the degree of my isolation, the extremity of my evasions, and the extent of my ignorance. . . . Whether I knew or did not know, or how much how little I knew, is totally unimportant when I consider what horrors I ought to have known about and what conclusions would have been natural ones to draw from the little I did know. Those who ask me are fundamentally expecting me to offer justifications. But I have none. No apologies are possible.”(3)
“Could it be,” John McNaughton once asked me in 1964, as he copied cables about the US-encouraged military coup against the elected president of Brazil, “that our foreign policy is nothing but counter-revolution?” “If what you say is true,” he had said six months later to RAND researchers briefing him on the motivation and morale of Viet Cong guerrillas in Vietnam, “we’re fighting on the wrong side.” Might it be true? Six months after that I asked McNaughton: “Could Victor Bator be right, in his description of the ’54 Geneva Accords? Could we be the ones in greatest violation of that agreement?” “If we’re willing to use B-52s in Vietnam,” I had asked myself that spring when they were first employed, “where would we draw the line? What will we end up doing?” All these were questions that if pursued might have led at the least to troubled consciences for us, and trouble for our careers if we had acted on that conscience. It was no accident that we didn’t pursue them. It was after these questions were raised—and for that matter, six months after the onset of the Rolling Thunder bombing campaign against North Vietnam, whose hopelessness and wrongfulness was not for me a question at all but a near-certainty—that I volunteered to serve in Vietnam.
Speer, too, acknowledges vague but urgent warnings, evidence for suspicion: precisely enough, he reflects later in his prison cell, to warn him away from following them up. An old friend Hanke came expressly to tell him, in a faltering voice:
“[N]ever to accept an invitation to inspect a concentration camp in Upper Silesia. Never, under any circumstances. He had seen something there, which he was not permitted to describe and moreover could not describe. I did not query him. I did not query Himmler, I did not query Hitler, I did not speak with personal friends. I did not investigate—for I did not want to know what was happening there. Hanke must have been speaking of Auschwitz. During those few seconds, while Hanke was warning me, the whole responsibility had become a reality again. Those seconds were uppermost in my mind when I stated to the International Court at the Nuremberg Trial that as an important member of the leadership of the Reich, I had to share the total responsibility for all that had happened. For from that moment on, I was inescapably contaminated morally; from fear of discovering something that might have made me turn from my course, I had closed my eyes. This deliberate blindness outweighs whatever good I may have done or tried to do in the last period of the way. [He had disobeyed and even sabotaged Hitler’s direct orders to him to execute a scorched-earth policy in Germany.] Those activities shrink to nothing in the face of it. Because I failed at that time, I still feel, to this day, responsible for Auschwitz in a wholly personal sense.”(4)
From 1965 to 1968, and perhaps to this day, Robert McNamara managed to believe that the strict monitoring of targets and Rules of Engagement he and the President were exerting at their Tuesday Luncheons was reflected on the ground in North Vietnam in a virtual absence of damage to civilians. When Harrison Salisbury came back from Hanoi with the contrary evidence of his own eyes, he was accused by the Defense Department of peddling Communist propaganda.
In our study of Roles and Missions relating to pacification for the Embassy in 1966, one of the 81 recommendations to Ambassador Lodge and General Westmoreland that we singled out as especially important was that an urgent study be made of the actual impact of current practices of bombing and artillery, both the physical consequences in terms of VC and civilians killed and injured and the effects on rural attitudes. Nearly everyone in our study group already believed from his own personal observations that the great majority of our bombing and artillery—aside from close support of ground combat operations—was “counterproductive” in both its human and political effects and should be terminated. But we knew that there would be strong military opposition to any reduction in bombardment. If we had simply proposed to eliminate most of it immediately, we knew our recommendations would be dismissed as subjective and unfounded, even though our group included some of the most experienced Americans in Vietnam, among them John Vann and our leader Colonel George Jacobson. We thought it would be harder for the various agencies to reject a proposal for a study, which after all had never been undertaken.
But it turned out not to be that hard. That was almost surely because those agencies included people who knew as well as we did that such a study would support our personal opinions, that we should stop what amounted to indiscriminate bombing and shelling of the rural population. That was, after all, why such a study had never been done: and was never to be done. But they didn’t say that. The Mission Council simply rejected our cautious proposal (along with most of our others) saying that it was “unnecessary.” Even the civilian Public Affairs Office opposed it, obviously fearing that any leak to the press of official statistics on civilian damage would have bad effects on public opinion at home. It was for the same reason that no agency collected any data whatever on civilian injuries and deaths or projected any estimates of these. It was the institutional counterpart of Speer’s (and I would guess McNamara’s) personal “need not to know.”
Two and a half years later, under a new Administration, one of the questions I drafted as part of NSSM-1 was: “How adequate is our information on the overall scale and incidence of damage to civilians by air and artillery, and looting and misbehavior by RVNAF?” In the spring of 1969 I reviewed for President Nixon the answers from all relevant agencies to this question, which made clear, as I expected, that such information remained inadequate or nonexistent. I reported this to the president, and I drafted a presidential directive on the subject of “Reporting and Compensation of Civilian Damage in South Vietnam.” I proposed that the Secretary of Defense, with the assistance of the Secretary of State and the Director of Central Intelligence, establish procedures assuring comprehensive regular reporting of damage to civilian lives and property caused by U.S. and allied operations. As a base point for this reporting, a study should establish as realistically as possible the magnitude of past and current damage and the nature of current gaps in our knowledge and reporting. The two Secretaries should evaluate the adequacy in scale and promptness of current programs for compensating civilian victims, providing medical aid for civilian injured, and handling refugees, and recommending needed improvements, including U.S. support costs.
A week after I sent this draft memorandum, along with others, to Henry Kissinger for his approval on March 1, 1969, I was told that all the proposals looked worthwhile but that the agencies “had been asked enough questions [by me, in NSSM-1] for the moment.” That seemed reasonable, for the moment. But two years later, when the list of studies directed had reached over a hundred, this particular one had still not been included (as Winston Lord had confirmed for me in January, 1971, the night I questioned Kissinger at the MIT Runnymede Conference). There were some things Executive officials knew well they didn’t want to know.
I could try to comfort myself by telling myself that I had used opportunities that had come my way to urge my superiors to inform themselves about the human consequences of their policies. The effort had failed, but I had been on the right side of that issue. And yet, as I read Speer’s interview, I was forced to remember that the first recommendation was in the middle of my two years in Vietnam. It was followed by another year in which, though I did make other such recommendations, I did not by any means do everything I could have done to inform myself of the dimensions of the burden imposed on the people of Indochina by U.S. firepower, let alone to inform anyone else. And the same was true of my effort in early 1969.
Thus, on that first day “up from underground” when I was asked what I regretted or felt guilty about, what came to mind first was my own long persistence in ignorance: of the full impact of the American way of war upon the people of Indochina and of the history of the conflict bearing on the nature and legitimacy of our involvement. Willful ignorance was not the only thing to blame, in me or in many other people inside and outside government; but it was a fault for which the release of the Pentagon Papers offered a partial cure. On that day and in the days that followed, I was inviting my former colleagues and the rest of the public to take advantage of the Pentagon Papers now and to go beyond them in reducing their own ignorance.
But speaking a month earlier at the Community Church before the Papers were available to my audience, I focused only on my own experience and what was to be learned from Speer’s. In his words, in the interview published that month:
“If I was isolated, I determined the degree of my own isolation. If I was ignorant, I ensured my own ignorance. If I did not see, it was because I did not want to see. . . . In my own case, there is no way I can avoid responsibility for the extermination of the Jews. I was as much their executioner as Himmler, because they were carried past me to their deaths and I did not see. It is surprisingly easy to blind your moral eyes. I was like a man following a trail of bloodstained footprints through the snow without realizing someone has been injured.(5)
What dominated Speer’s impressions of the past was the Nuremberg trial itself, with its testimony and photographs that presented, inescapably, not abstract “enemies” but individual human beings, victims, who had become, at last, real to the criminal defendants. As real, one might say, as their own hands. Speer recalled in particular “one photograph of a Jewish family going to its death, a husband with his wife and children being led to the gas chamber. I couldn’t rid my mind of that photograph; I would see it in my cell at night. I see it still. It has made a desert of my life.”(6)
When I started reading these passages by Speer aloud to the audience at the Community Church, in Boston on May 23, 1971, my private mood as I began was detached. I was, in fact, imagining that Robert McNamara, McGeorge Bundy, Dean Rusk, or the Presidents they served were listening. I was reading to them. But as I reached the stunning image of the trail of bloodstained footsteps, I heard my voice grow low and halting. I paused, and said to my hearers, “I am finding this difficult to read.” After a moment, I went on, but I brought the talk to an end. I knew that I was one of the listeners I had imagined. It was my own eyes filling in response, my voice gone husky speaking these indictments.
I was there, too, however minor and “innocuous” and skeptical my role. “How can you be part of this?” Patricia had asked me in Saigon in 1966 (in the very week of our abortive recommendations in the Roles and Missions study), shortly before I drew back from our engagement. Years later, hearing me say once again, truthfully—as I told the Times reporter the day of my surrender in Boston—that I felt no guilt for anything I had personally done in Vietnam, she said: “You know, I always hear you say that. But somehow, you should feel more guilty than you do.” It was a while, even then, before I realized that she was right. Yet that knowledge was already implicit in my response to my readings at the Community Church in May.
“My moral failure,” Speer says, “is not a matter of this item and that; it resides in my active association with the whole course of events.” That accusation—and the more specific ones of willful, irresponsible ignorance and neglect of human consequences, and prolonged blinding of conscience—are truths I must live with.
Endnotes
1. Patricia wasn’t with me having the same experience, since for some reason she hadn’t been arrested and indicted—as Tony Russo later was—or even named as an “unindicted co-conspirator” like Vu Van Thai, whose prints were found on one volume. After all, since our copying that spring her fingerprints were all over those documents, probably more even than Tony’s. We could never figure out why she wasn’t indicted. My own guess had been that the prosecutor didn’t want to put her in front of a jury, because she was too sympathetic a figure.
We never really knew, until ten years later, when we got arrested together along with Dan Berrigan protesting the University of California’s ties with the Nuclear Weapons Labs. She remarked, as we were all being fingerprinted, that this was the first time she had ever been fingerprinted. I could hardly believe it. I was only seven years older than she was, and I’d given my prints a dozen times before I’d ever been arrested. But our careers had been different. That answered finally why she hadn’t been indicted. They had her prints on the Papers, all right, but they didn’t have her matching prints on file. Now they did, so she couldn’t get away with that again. It made a difference only for her first act of civil disobedience, copying the Pentagon Papers. But that first step was a tall one.
2. These details and subsequent quotes from the arraignment are from Robert Reinhold’s story in the New York Times, June 29, 1971, datelined June 28 from Boston.
3. Inside the Third Reich (New York: 1971), 19, 113, emphasis added.