United States v Daniel Ellsberg and Anthony Russo: Selected Testimony (1973)
United States District Court, Central District of California
DIRECT EXAMINATION by Charles Nesson:
Q Turning your attention now to your period of your employment in the ISA, did you have any responsibilities in connection with the Pentagon Papers, the production of the so-called Pentagon Papers?
A Yes, I did.
Q What were those responsibilities?
A Well, my responsibilities was for general of the task force which produced the Pentagon Papers.
Q Now, are you, then, familiar with the production of those papers?
A Yes, I am.
Q Now, will you please describe to the jury step by step how the task force report or the Pentagon Papers, or whatever you wish to call it, were produced.
A Well, the first contact I had with it occurred sometime in June of 1967. I was called by a man who was then my boss, Assistant Secretary of Defense John McNaughton, to his office.
When I came in there was also present then Colonel, now General, Robert Gard, who was the-one of the two military assistants to the Secretary of Defense Robert McNamara.
Colonel Gard indicated to me and to Mr. McNaughton that Secretary of Defense McNamara wanted a study done which would be a history of the involvement of the United States in Vietnam, that he wanted this study to be encyclopedic and objective and that he had prepared, and Colonel Gard had with him, a long list of questions which were among the questions that Colonel Gard said that Mr. McNamara wanted answered as part of his history of where we were and how we had gotten where we were in Vietnam.
We then had a discussion among the three of us as to how this study might best be done. We agreed that it would have to be done in the immediate office of the Secretary; that is, not in one of the offices of the Assistant Secretaries, and that it would have to be done by a full time staff which would work intensely on the study. At that time our estimates were that the job could be done in perhaps three or four months.
And as a result of this meeting, Colonel Gard prepared a memorandum to the Secretary of Defense recommending that a full time task force of perhaps six or eight people be set up in the immediate office of the Secretary of Defense to prepare the study. The recommendation was that I be the full time director of the task force....
Q When you say that the designation "Sensitive" was applied to the documents so that their existence-indicating that their existence should be kept from other Americans, what other Americans are you referring to?
A In this case it included, as I say, everybody who was not directly involved either in the writing of the study or in supplying documentation for the studies.
Q Who would that include?
A That would include officials of the Department of Defense, of the Department of State, of the White House, of the U. S. Military Assistance Command, Vietnam, members of Congress, and the public in general.
Q Were there some considerations which you had in mind in coming to your decision that these documents should be marked "Sensitive"?
Did you receive any instructions with reference to these studies and their markings?
THE WITNESS: I received instructions that the existence of the study was not to be revealed except to people who had to have it.
THE COURT: From whom did you receive those instructions?
THE WITNESS: From the military assistant to the Secretary, indicating those were his instructions.
THE COURT: What was his name?
THE WITNESS: The Secretary of Defense was Robert McNamara; the military assistant was Colonel Gard....
Q And did you have occasion in January, 1969, to have any conversations with others in the Department of Defense with respect to the sending of a copy of the task force report to the Rand Corporation?
A The conversation may have been in December, but they were either in December or January I had such conversations.
Q With whom did you have these conversations?
A With Paul Warnke and Leslie Gelb.
Q And what were the circumstances which led to your having these conversations?
A We were all planning to leave, or expected to be leaving, the Department of Defense, and the question arose as to whether there were any papers or documents which we should take with us in the sense that we would pack them up and have shipped for us to some place where we would store them.
Q And what was the occasion for your all leaving the Department of Defense?
A This was the end of the Johnson administration, and we were all appointed in positions which were not protected by the Civil Service, or at least I was and Mr. Warnke was, and the expectation was that all three of us would be leaving when the new administration came in.
Q Was there any practice with which you were familiar at that time of officials in the Executive Branch, particularly in the Pentagon, packing up their papers, as you say, at the point of changeover of the administration?
MR. NISSEN: Objection. Immaterial.
THE COURT: Sustained....
Q Following those conversations, Mr. Halperin, what did you do with respect to the copy 1 of the task force report?
A Following the first conversation that I had with Mr. Warnke and Mr. Gelb, I phoned Harry Rowen, the president of the Rand Corporation.
Q What was the purpose of your telephone conversation with Mr. Rowen?
A The purpose of the conversation was to find out whether these documents and a number of other documents could be stored at the Rand Corporation for myself and Warnke and Gelb.
Q Did you, in that conversation, come to an agreement with Mr. Rowen as to the terms and conditions under which the papers would be stored at the Rand Corporation?
A Yes, I did. . . .
THE COURT: Well, when was the conversation? Where were you when it took place, and who is Mr. Rowen?
THE WITNESS: I was in my office in the Pentagon. The conversation was either late in December of 1968 or early in January of 1969. Mr. Rowen was at that time the president of the Rand Corporation.
BY MR. NESSON:
Q What were the terms of the arrangement which you worked out with Mr. Rowen as a result of that telephone conversation?
A The understanding was that we would put together a set of materials that we wished to have stored for us at the Rand Corporation, that Rand would store these materials in a top secret safe in a room which was authorized to have such a safe, that the material would be available to us at our request, and that the material would not be treated by Rand the way it treated materials which came to it under contract, but rather would be stored outside the normal Rand top secret control system, but simply put in a separate top secret safe.
Q When you refer to materials, what materials specifically are you referring to?
A Well, the materials that were gathered together with the volumes of the task force, the Vietnam task force, the Pentagon Papers, which were then typed in final form. That was apparently thirty-seven separate studies, two copies of one study-apparently by mistake included-an additional set of notebooks, which were those of John McNaughton, which had remained when he had been killed, which were the McNaughton private papers, and then there were some additional notebooks which were materials that had either been written by Mr. Warnke or by me or by Mr. Gelb during the course of our work in the Pentagon, and we-which we wished to store along with these other materials.
MR. NESSON: Mr. Bennion, could you project B-l. (Slide shown.)
Q Now, does B-1 embody the arrangement which you worked out by telephone with Mr. Rowen?
A It embodies the basic elements of it; not all of the details of it.
Q Now, would you describe for the jury what details are not embodied in that agreement.
A It does not embody the specific understanding that these documents would not be included in the Rand top secret control system or given to the Rand top secret control officers, but rather would be kept under the immediate control of either Mr. Rowen or Mr. Henderson, who was the Vice President of the Rand Washington office. Apart from that, I think it covered the essential elements.
Q Now, with respect to the arrangement that the material should be kept in the control of Mr. Henderson or -was there another party that you mentioned there?
A Mr. Rowen.
Q With respect to the term of the arrangement, as you just described it, what was the purpose of that term?
A The purpose of the arrangement was to insure, on the one hand, that the three people who signed the agreement-Mr. Warnke, Mr, Gelb, and myself-could get access to the documents, as it says in the memorandum, on our own authority, which might have been a problem if the documents was in the formal Rand top secret control system, which would require the Rand top secret control officer or the security officer of the Rand Corporation to specify that we had a need to know -to see these documents in connection with Rand projects.
We also felt that the document should not get wide distribution within the Rand Corporation, which is why the document spelled out rather precisely the procedures under which people at Rand might get access. And again we felt that if the documents-or I felt that if the documents were in the Rand top secret control system, the process of granting access might come out of our control and into the control of the Rand security officers.
And finally, the very existence of this study continued to be a closely guarded secret, even within the government, and my feeling was that if it entered the Rand top secret control system, it would then show up on Rand inventories, which were accessible to people from the Air Force and the Defense Department, which monitored the Rand Corporation, and in that way might become known to people who were not supposed to know even of the very existence of the study.
Q Did the agreement you made with Mr. Rowen incorporate the terms of the Industrial Security Manual?
A No, it did not....
Q Now, directing your attention to the end of February or early March, 1969, did you receive a request from any person that Dr. Ellsberg be permitted to have access to the OSD task force materials?
A Yes. I'm not sure of the precise date, but some time in that general period I did receive such a request.
Q From whom did you receive the request?
A I received a phone call from Mr. Harry Rowen, who was still the president of the Rand Corporation, asking me to give my approval and to secure the approval of one of the other two gentlemen named in the memorandum for Daniel Ellsberg to have access to the task force volumes.
Q And what action was taken upon that request?
A I consulted with Mr. Warnke and Mr. Gelb. I then called Mr. Rowen back and indicated that we would not grant approval to Mr. Ellsberg to have access to these documents.
Q Did you receive some further request that access for Dr. Ellsberg be granted?
A Yes. In that second phone call I received a second request from Mr. Rowen that Mr. Ellsberg be granted access to the documents.
Q And what action was taken upon that request?
A I then telephoned Mr. Gelb and told him that Mr. Ellsberg was working on a contract for the Department of Defense on the lessons learned from Vietnam, and that Mr. Rowen felt that Mr. Ellsberg could make good use of the OSD task force volumes in working on this Defense Department contract, and that he felt very strongly that given the fact that Rand was storing the volumes for us, we should honor this request, which was at that time the only request that he had made, and give access to the volumes to Mr. Ellsberg.
THE COURT: What was the date of this conversation?
THE WITNESS: All of these conversations took place in February, March or April of 1969.
BY MR. NESSON:
Q And what action was taken upon that request?
A I then called Mr. Rowen and indicated to him that Mr. Gelb and I had approved access for Dr. Ellsberg to the OSD task force volumes.
Q Did you discuss the subject of storage conditions of the documents at the Rand Corporation?
A Yes, we did.
Q And could you relate the substance of that discussion?
A I indicated to Mr. Rowen that we would agree to have Dr. Ellsberg take the documents from the Rand Washington office to the Rand Santa Monica office, provided that the documents continued to be treated as they had been in the Rand Washington office, that is, that they not be put in the custody of the top secret control officer, that they not be given Rand top secret access sheets, and, in conformity with the provision 4 of the memorandum to Mr. Rowen, that they be available in Washington on 72 hours' notice....
CROSS EXAMINATION by David Nissen:
Q Did your private papers include all documents that came to you in the course of your work?
A No, they did not.
Q Was there any document that came to you in the course of your work that, in your judgment, you could not have taken a copy of as a part of your private papers?
A Not if I had arranged to store it in a facility which had the proper storage facilities for the document as it was marked by the government.
Q So -in your judgment you could have taken National Intelligence Estimates, CIA reports, State Department cables, the Wheeler report, back-channel communications, and anything else that came across your desk or to your attention?
May I explain my answer?
THE COURT: Yes, you may.
THE WITNESS: I have, in the course of research that I had done for the government and in the course of reading the memoirs of former government officials-and I have read, I think, virtually all of the memoirs written by former government officials-I have done one or several classified research projects for the government, and in the course of the reading I have done, I have found a number of references to the fact that people were writing their books based on papers that they had taken with them from the government.
And it was clear from the papers that they quoted, from the documents that they had quoted, that they had taken with them papers of the kind described in the question.
From the interviews that I conducted with former officials of the government for research projects that I had done, it was clear that they had taken with them materials of the kind that I had mentioned.
Also at the time that I was leaving the government I talked to a number of other officials who were planning to leave the government at the end of the Johnson administration and asked them what kind of papers they were taking and where they were sending those papers.
So, on the basis of interviews that I had conducted with people in the course of which they referred to the private papers that they had taken with them, in the course of reading that I had done in memoirs in which people in the bibliography and the appendices referred to the private papers they had taken with them, in the course of conversations that I had with people leaving the Johnson administration at the end of it and conversations that I had had with people who had previously left the Johnson administration, I concluded that the standard practice that many people followed in the government was to take with them papers that they had written and any other government documents that came to their attention within the government which they felt were a necessary part of telling the historical story which centered around their own papers.
So I concluded that, according to that common practice, that I had the right to take these papers which fit in with and were part of the story that would be told by my private papers for the deposit in a facility that had the requisite storage facilities to hold materials so marked, and with the notion that they would later be available to historians and other scholars who would be interested in the events which I had participated in the government.
BY MR. NISSEN:
Q By whose authority did you take the classified materials which you have characterized as your private papers?
A I did not take them; I had them shipped to a facility which was authorized to secure them. My understanding was that the law-in particular, the Presidential Papers Library Act, authorized-
THE COURT: Excuse me. Again, what the law is, I will instruct the jury on. . . .
Q Sir, on your departure from government service did you represent to the government that you did not then have in your possession, custody, or control any document or other things containing, or incorporating, information affecting the national defense or other security information classified Top Secret, Secret, or Confidential to which you obtained access during your employment or assignment?
A Yes, I did. But I would like to explain my answer.
THE COURT: You may.
THE WITNESS: I took those words to mean in my possession, not material that I had arranged to have deposited in a government security facility....
BY MR. NISSEN:
Q Whether you saw that article or not, sir, at about that time, were you aware of the newspaper disclosure in an article in the New York Times under Neil Sheehan and Hedrick Smith's name?
A Yes, this is the article and I did see it at the time.
THE COURT: Does that article refresh your recollection as to the approximate date?
THE WITNESS: It is the 10th of March, 1968.
Q Now, sir, on October 21, 1971, is it not true that you refused to answer the questions furnished you by the FBI with regard to the Wheeler report and Mr. Ellsberg?
A I saw no connection between questions about the work that was done in my office on the Wheeler report and the publication in the New York Times of the Pentagon Papers.
Q Even though the Wheeler report, the eight pages, had appeared in the New York Times in 1971, sir?
MR. NESSON: Objection as argumentative.
THE COURT: Sustained.
BY MR. NISSEN:
Q Sir, one of the questions you refused to answer on October 21, '71, was whether Mr. Ellsberg was a member of the group working in your office in March of '68; isn't that correct?
A As I say, I do not remember any of the specific questions. There were a group of questions read out, all of which concerned work being done in my office in the Pentagon in March of 1968, and I believe perhaps also concerning the publication of this article, and I saw no relevance of any of those questions, and I refused to answer all of them.
As I said, I was given no explanation of the relevance of the questions.
Q On that same occasion you refused to answer the question of whether you furnished or authorized anyone to furnish the Wheeler report to Mr. Ellsberg, or any part of it; isn't that true?
A I can, if you like, repeat the same statement. I do not remember any of the specific questions that were asked: I was asked a whole series of questions about the work being done in my office in March, '68, perhaps also about the leak of this to the New York Times, and I replied that until I was furnished with an explanation of the relevance of those questions to the publication of the Pentagon Papers in the New York Times, that I would not answer those questions.
The FBI agents said that they did not know the relevance, that the questions had been simply given to them by the Defense Department, and they agreed that they would go back to the Defense Department and ask the Defense Department the relevance of the questions, and that if it was felt that answers were needed, they would either come back to me or that the Defense Department would, and I never subsequently had a request to answer the questions or an explanation of their relevance....
Q Was the basis for the approval of Mr. Rowen's request the fact that Mr. Ellsberg was working on Vietnam matters for Rand under a DOD contract and because he still retained his Defense Department clearance?
A . . .The reason for my approval was the very strong representations from Mr. Rowen, who was the person who had agreed to store this material for us, that he felt that Daniel Ellsberg should be given access to this material. . . .
Q Was your approval of Rowen's request given reluctantly, sir?
A No, it was not.
Q On October 6, 1971, did you advise interviewing FBI agents that your approval was given reluctantly?
A I have no recollection of that. I certainly told them that Mr. Gelb's approval was given reluctantly, and I may have said that approval for Mr. Ellsberg to have access was given reluctantly....