Notes on TOP SECRET: THE BATTLE FOR THE PENTAGON PAPERS

This play is based on interviews with the participants and on the actual trial transcripts, including transcripts of the in camera portions of the proceedings that were released under the Freedom of Information Act. For dramatic purposes we have taken certain liberties without, we think, changing the facts. The White House dialogue comes from the White House tapes as well as the accounts of participants but discussions have been compressed for purposes of clarity and drama. While the play focuses on The Washington Post, the trial dialogue in Act II uses material from The New York Times case as well as from The Washington Post case. Each case was heard by a trial court, an appellate court, and the U.S. Supreme Court. The lawyers and the judge, therefore, represent a composite of the many lawyers and judges who participated in those cases. Judge Murray Gurfein, whom John Mitchell praises when he issues the first restraining order against the The New York Times, ultimately issued a ringing endorsement of the importance of the First Amendment. The final scene in the play is a dramatic invention that is consistent with the views of the characters and issues as we have come to understand them.

For clarity and simplicity, we have also consolidated a few Washington Post employees. George Wilson, who played a crucial role during the trial, actually wasn't present in Ben Bradlee's home on June 17, 1971. Yet we have placed him at Bradlee's home in Act I. Also, since it would have been unwieldy to include all of the important participants at Bradlee's home that day, a few key reporters and editors, most notably Philip Geyelin and Don Oberdorfer, have, to our regret, been omitted from the drama.

Those interested in learning more about our sources and about the people and issues involved in the Pentagon Papers case as well as in other conflicts between press freedom and national security, may want to visit our website at www.topsecretplay.org.

A Note from Geoffrey Cowan, Playwright
University Professor and Annenberg Family Chair in Communication Leadership
Director, Center on Communication Leadership & Policy

This play had its origins in a classroom. In the mid-1970s, when teaching an undergraduate lecture course in
media law, I found that the most important and dramatic way to start the class was with a discussion of the
Pentagon Papers Case.

The case was of signal importance since it pitted the interests of a free press against the government’s need for
secrecy when national security may be at risk. Moreover, the facts were riveting. In the midst of a war in which more than 50,000 American soldiers were killed, The New York Times gained possession of a huge trove of documents that traced the origins of the war and described the U.S. government’s internal deliberations. Importantly, many of the documents showed that the government had deceived congress, the press and the public.

The documents, which soon became known as the Pentagon Papers, had been commissioned by Robert McNamara in 1967, while he was the Secretary of Defense. He wanted the government to be able to gain a greater understanding of the origins and decision making process of the War in Vietnam. Just after President Nixon took office in 1969, the Defense Department published the 47 volume, 7,000 page study, which included about 4,000 pages of contemporaneous documents. It was the most limited of editions. There were only seven copies – five of which were held under lock and key within the United States government at the departments of state and defense and at the National Archives. The sixth copy was in the possession of Secretary McNamara, who had become the President of the World Bank. The seventh volume was in Santa Monica, at a think tank called the RAND Corporation, which conducts highly sensitive studies for the Department of Defense.

Practically no one read them. But one of those who did was Daniel Ellsberg, a former Defense Department employee, a one time fervent supporter of the war (or “hawk,” in the parlance of the era), who had come to believe that the war was a tragic mistake. With the highest security clearance, he was working at RAND. He quickly became convinced that the Congress and the American people needed to understand what the papers had to say, that they could help to end the war by explaining the series of mistakes and deceptions that had led us to enter Vietnam and to remain there. He and his colleague, Anthony Russo, secretly copied the documents. First, Ellsberg tried to share some of the documents with Senator William Fulbright, Chairman of the Senate Foreign Relations Committee, hoping that he would hold hearings and make them public. When that failed, he gave the volumes to Neil Sheehan, a The New York Times reporter who had covered Vietnam and had just published a front page book review called “Should We Have War Crimes Trials” that discussed the possibility that those who had been involved in conducting the war (perhaps including Ellsberg himself) might be guilty of war crimes.

Against the advice of their outside lawyers who argued that the publication of top secret documents could be illegal, but following the advice of James Goodale, their internal lawyer, the publisher and editors of The New York Times set up a secret team to scour the papers and prepare a series of front page articles that made heavy use of the documents. When the first story appeared on June 13, 1971, President Richard Nixon’s initial reaction was surprisingly benign; after all, the material in the papers ended in 1968, before Nixon took office. But he quickly became concerned about the need to protect government secrets, and he instructed the Attorney General to go to court immediately to block the rest of the series. The government argued that the Pentagon Papers were filled with vital information including codes and battle plans that could put American lives at risk. The district court granted an immediate injunction, pending a formal hearing. And here is where our story, and that of The Washington Post, begins.

In the early 1980s, having told the story to students for almost a decade, I decided to write a play that would use the techniques of contemporary political dramas based on documents – such as Are You Now or Have You Ever Been and In the Matter of J. Robert Oppenheimer, both of which use the transcripts of government hearings to examine the excesses of anti-communism during the Cold War. Since the Post’s story was so much more compressed, I decided to tell the story from the perspective of that paper rather than the perspective of The New York Times, though both cases were dramatic and the Times is, properly, more indelibly identified with the case. I was quickly joined by my friend, the late Leroy Aarons, an immensely talented former Washington Post reporter who had a flair for theater and knew all of the newspaper’s participants. How Roy would have loved this new production.

Roy and I interviewed most of the key participants and used all of the documents that were available at that time. It should be noted, however, that some additional materials, including some highly revealing White House recordings,
have become available during the past decades. Some of those documents, along with other material that may be of interest to students and others, are available on the website of the USC Annenberg Center for Communication Leadership at www.topsecretplay.org

As I write these words, issues of the press and national security are very much in the news. During the War in Iraq, The New York Times, Washington Post and other papers have printed stories that the government says compromise our efforts in the war on terror. The Washington Post’s Dana Priest won a 2006 Pulitzer Prize for her reporting about the CIA’s interrogations of Al Qaeda suspects at secret prisons (referred to as “black sites” inside the government) in eight countries, including some in Eastern Europe. At the government’s request, she withheld the names of those countries. In awarding the prize, the Pulitzer committee commended Priest “for her persistent, painstaking reports on secret ‘black site’ prisons and other controversial features of the government's counterterrorism campaign.”

Meanwhile, James Risen and Eric Lichtblau of The New York Times won a Pulitzer for their stories describing the administration’s decision to engage in widespread domestic surveillance without a court order – a practice that has since been changed. The Times reporters were cited by the Pulitzer jury "for their carefully sourced stories on secret domestic eavesdropping that stirred a national debate on the boundary line between fighting terrorism and protecting civil liberty."

Many people in and out of government regarded those and similar recent stories as great journalism that has helped to protect our constitutional liberties and America’s democratic form of government. Others questioned the wisdom of publishing those stories and some went so far as to charge the papers with treason and wanting America to lose the war. (In his radio program, for example, former Secretary of Education Bill Bennett said of the Times reporters “I think what they did is worthy of jail.”)

In June 2007, in a widely debated decision, the CIA decided to release a trove of CIA secrets sometimes known as the “Family Jewels.” The director of National Intelligence, Michael Hayden, explained that he had ordered release of the documents because openness can help build trust for the CIA and because the more that the agency can tell the public, the less chance that misinformation among the public will “fill the vacuum.”

The debate over national secrecy has continued under the Obama administration. It is perhaps inevitable that there will be conflicts with the nation involved in two wars and with the continuing threat of terrorism. Some things have changed: we have a very different Supreme Court; financial problems have plagued newspapers that were once profitable enough to be courageous and even, at times, arrogant; new technologies have created new outlets for those who want to disseminate material labeled “secret,” as well as for those hoping to identify or debunk the leakers; and there may be a federal shield law. But while there will be changes in the players, the wars, the technology and the law, the battle between the real and perceived needs of the press and the government are certain to endure.

In any case involving top secret national security documents, there are a series of decision makers: those in the government who classify the materials in the first place; the person with access to the material who decides to give it to the press; the reporters, editors and publishers who decide whether to use the story; the leaders of government who decide whether to take the case to court; and the court itself, which has to decide whether to stop the press from printing – or to punish the press for what it has printed. The stories that gain public attention are naturally those where the material is “leaked” and where a publication decides to use the material. Those concerned with the battle over government secrets should always be mindful that the best reporters and editors have had access to scores of national secrets that they have decided not to print and that such reporters and editors maintain that they only print those stories which they are convinced have been improperly classified and where the benefits to the public far outweigh any risks to national security.


Notes from Susan Loewenberg, Producing Director, L.A. Theatre Works

THE ORIGIN OF TOP SECRET: THE BATTLE FOR THE PENTAGON PAPERS
Around 1990, I called my friend Geoff Cowan seeking information about a First Amendment issue I was researching. Geoff was teaching at UCLA at the time and was known to be an expert in the field. He answered my questions, and then told me about a docudrama he had written with his friend Leroy Aarons called TOP SECRET: THE BATTLE FOR THE PENTAGON PAPERS. Leroy, a Pulitzer Prize-winning journalist, was The Washington Post bureau chief at the time of the “dust up” over the Papers. Though the play piqued my interest, it sat on my desk along with a pile of other scripts I liked but could not yet find a place for in our season.

When the Gulf War began in 1990, my eye happened to fall on Geoff and Roy’s manuscript. Suddenly, a light bulb
went off: TOP SECRET resonated perfectly with the then-current debate: National Security vs. The People’s Right To Know. The play dramatically re-enacted the very issues we were experiencing at the height of the Gulf War.
We shifted into high gear, quickly contacting our local NPR station, NPR headquarters and LATW’s cadre of top
actors - Edward Asner, Marsha Mason, Harry Shearer, Stacy Keach, Hector Elizondo, and Ed Begley, Jr.- among others, to see if they would participate. KCRW (our local station) agreed to record the show for broadcast nationwide and NPR agreed to national distribution; we were off and running. The idea was to “go live” in Los Angeles and delay the broadcast for one day so the East Coast and Midwest would hear it at a reasonable hour. Geoff, Roy, Ruth Seymour from KCRW and I put our heads together to come up with a wish list of post-performance panelists. Of course, the first on our list was Ben Bradlee, the editor of the Post at the time of the Pentagon Papers (not to mention the center of the storm a few years later, uncovering the Watergate scandal). I called him - cold - and to my delight he answered the call. I gave him my pitch, and his first question was, “Who’s playing me?” I replied “Ed Asner,” and he seemed pleased. After a pause he asked, “And who is playing Kay?” When I told him Marsha Mason, he chuckled, told me he had danced with her once at the White House, and signed off with, “I’m on board.”

After that coup, the rest was easy. Six weeks later, with the war in the Gulf still raging, we were in the ballroom of the Guest Quarters Suite Hotel (which had been transformed into a recording studio) with 500 audience members practically hanging from the rafters. Our director, Tom Moore, had worked intensely with the authors to polish the script into a radio show, and we had assembled a dream cast. We had a spectacular panel with Bradlee and Carla Robbins, the head of the reporters’ pool in the Gulf, calling in from the NPR studios in Washington; with us in Los Angeles were George Wilson, the actual reporter who figures prominently in the play, Robert Scheer one of the prominent left-wing journalists who was a major critic of the government during the Vietnam War, Bob Maynard, the editor of the Oakland Tribune, and Peter Braestrup, a former Vietnam-era journalist and Senior Editor and Director of Communications at the Library of Congress. The play wrapped up around 1 a.m. EST, so we made sure Ben Bradlee and Carla Robbins back in D.C. had plenty of hot coffee and treats to keep them going for the post-show discussion.

Both the docudrama and the panel afterwards were grand successes, and we won the Corporation for Public Broadcasting’s Gold and Silver Awards for the Best Radio Drama Production that year. In retrospect, I am glad I placed the call to Geoff that day. In 2007, we decided to tranform the radio production into a stage play. So Geoff Cowan, working with our director John Rubinstein, took the premise and created a new docudrama for the stage. We then toured the show to 25 universitiy and civic performing arts centers throughtout the United States. Along with our co-producers, Affinity Company Theatre and NYTW, we are delighted to be bringing this ever-relevant work to New York Theatre Workshop as we continue to confront the issue of National Security vs. The People’s Right To Know.

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