Investigative reporter Seymour Hersh has been a thorn in the side of Defense Secretary Donald Rumsfeld during the Iraq war. Rumsfeld's discomfort was at least as acute in spring 1975.
Then chief of staff to President Gerald Ford, Rumsfeld proposed "immediate initiation of an FBI investigation" into Hersh and his sources, according to a 58-page file from the Gerald R. Ford Library. Rumsfeld and his top deputy, Dick Cheney, now the vice president, considered options including a "search warrant -- to go after Hersh papers in his apt.," the Ford library file shows.
Hersh was then a New York Times reporter whose May 25, 1975, story revealed details of risky and provocative U.S. spy submarine missions in Soviet waters, in violation of the three-mile limit. The top-secret spy sub program was diplomatically sensitive because U.S. and Soviet leaders were publicly engaged in detente.
In a memo to Ford, then-Atty. Gen. Edward H. Levi recommended against an FBI probe, and Ford quashed the idea, according to the Ford papers and an interview with then-Deputy Atty. Gen. Harold R. Tyler Jr., who drafted legal memos supporting Levi's hands-off position.
"This is for the birds -- that was my reaction at the time and now," said Tyler, who became a federal judge and is now an attorney in private practice. "God almighty -- forgive me for laughing," Tyler said. The proposal to investigate Hersh "baffled me."
Hersh declined to comment on the file. "The record speaks for itself," he said. Rumsfeld said, through a spokesman, that he did not recall the incident. Pentagon spokesman Larry Di Rita said the records show Rumsfeld considered launching an investigation but remained open-minded and was quickly persuaded to drop the matter. "This is very much the way he operates," Di Rita said. "He will say, `Here's what I think, based on what I understand, and now somebody calibrate me.'|" And the file shows, Di Rita said, that Rumsfeld "takes the leaking of classified material very seriously."
Three days after Hersh's spy sub report, on May 28, 1975, Cheney met with White House counsel Philip W. Buchen and Levi -- who had left his position as president of the University of Chicago to become Ford's attorney general. Levi questioned the wisdom and feasibility of any legal action, Cheney told Rumsfeld in a memo the next day. Levi felt there should be no FBI investigation unless they really intended to prosecute Hersh. A prosecution would likely fail, and could expose other facets of America's espionage program, Levi argued in that meeting and a subsequent memo to Ford.
In a later memo, Cheney told Rumsfeld that they had considered five options: investigating Hersh and his government sources; obtaining a search warrant "to go after Hersh and remaining material"; seeking a quick indictment of those who disclosed classified secrets; "quietly" informing The New York Times that the government could prosecute but wouldn't if the Times stopped leaking classified information; or doing nothing.
Rumsfeld responded with a May 30 cable to Cheney from Brussels, where he was visiting NATO officials with Ford. Rumsfeld wrote: "There is a desire to have the FBI investigation begin soon." Assuming no adverse impact on "the program" -- presumably the submarine operations -- "I will assume that the FBI investigation will begin," Rumsfeld wrote.
Cheney wrote back to Rumsfeld, "re: Your latest, directing immediate initiation of an FBI investigation." Top administration officials "are conducting internal reviews designed to identify all potential sources of information contained in [Hersh's article]," Cheney wrote. "The results will be provided to the Justice Department for any investigation undertaken by the FBI."
Cheney added that these preliminary probes were "being carried out in a manner designed to avoid any additional publicity." Cheney wrote: "Any visible investigatory activity directed at Hersh or the N.Y. Times is likely to stimulate additional publicity and give credence to the story which it does not now have."
In the end, Levi persuaded Ford not to take legal action, the memos indicate.
"We thought that Sy Hersh did not need to be investigated," Tyler said. "He's still going strong, and a free press is still -- hopefully -- alive."
Di Rita said no one at the Pentagon harbored any animus against Hersh for the 1975 story. "That's not the way people are around here," Di Rita said. "They're much too busy."