The Chicago Tribune editorializes on a story it ran June 7, 1942:
With each court ruling, the secret testimony that a Chicago grand jury heard during World War II edges closer to public scrutiny. If that testimony is unsealed, all of us will know more about the government’s only effort to prosecute the news media for an alleged violation of the Espionage Act of 1917. The journalists in the dock? Our predecessors at the Chicago Tribune.
This as yet unfinished yarn traces to the U.S. Navy’s ambush of an Imperial Japanese navy strike force near Midway Island. The little atoll halfway between Asia and North America was a steppingstone in Japan’s plan to seize the Hawaiian Islands. As the U.S. neared victory on June 7, 1942, the Tribune published a front-page scoop, “Navy Had Word of Jap Plan to Strike at Sea.” The story reported the size and schedule of Tokyo’s armada. The story’s richness of detail strongly implied (without stating explicitly) that Washington had cracked Japan’s secret naval code: The Tribune evidently had obtained the Japanese plan from an official U.S. source — someone who had access to decoded Japanese secrets.
The Tribune’s tacit revelation of the code-breaking coup infuriated Washington. President Franklin Roosevelt wanted to have Marines occupy Tribune Tower. Under pressure from Roosevelt and Navy officials, a special prosecutor impaneled a federal grand jury here to consider espionage charges against reporter Stanley Johnston, managing editor J. Loy Maloney and the Tribune itself. The grand jurors decided not to indict. But for 74 years the testimony they heard from some 13 witnesses — including naval officers and staffers from the Tribune and two other newspapers that ran its story — has remained sealed.
In 2014 a coalition of historians and the national Reporters Committee for Freedom of the Press asked the U.S. District Court here to open the grand jury records. Government lawyers fought that request and, when they lost, appealed. Last week a panel of the 7th U.S. Circuit Court of Appeals voted 2-1 to open the records. The legal dispute has little to do with the Midway story and much to do with the rare circumstances in which grand jury proceedings can become public. Courts have permitted that in such historically significant cases as those of accused Soviet spy Alger Hiss, executed “atomic spies” Julius and Ethel Rosenberg and Teamsters boss Jimmy Hoffa. Historical relevance adds heft to a release request, as do the deaths of the principals and the expiration of security threats, as is the case here.
The testimony might detail how war reporter Johnston got his controversial scoop. We don’t know. But we’ve written before that many historians think Morton Seligman, a U.S. Navy commander, intentionally or inadvertently leaked the info. A month earlier, during the Battle of the Coral Sea, Johnston had raced below deck to rescue badly burned sailors on Seligman’s sinking carrier, the USS Lexington. On June 7, as the Navy’s angry commander in chief Adm. Ernest King absorbed the Tribune’s Midway report, he had on his desk a draft citation honoring Johnston for his heroism aboard the Lexington.
What happens now? Katie Townsend, litigation director for the Reporters Committee, tells us the feds have until Sept. 29 to appeal to the full 7th Circuit, or until mid-December to appeal to the U.S. Supreme Court. One of Townsend’s filings neatly synthesized the stakes here: “The Tribune case speaks directly to a fundamental tension at the core of our democracy, involving the public’s right to know and the government’s duty to protect its citizens in time of war.” FDR and naval officials thought the breaking of the Japanese code should remain secret because doing so would make it useful as the war progressed. The Tribune thought it had a right to publish its thinly veiled disclosure of the code-breaking. It’s possible the grand jury testimony offers evidence on those points.
We’ve also written that our predecessors knew what it was to have the full force of the government, from the White House on down, try to punish this news organization for publishing information it held, in a manner that did no harm. The Tribune’s response to word that the feds would convene a grand jury: “We have said and proved that we cannot be intimidated and now, once again, we are going to prove it.”
Fighting unwarranted government secrecy is a big part of what news organizations like the Tribune do, in wartime and peacetime. That’s one reason we hope government lawyers admit defeat and end this lingering battle of Midway.
Taxpayers United of America adds in a news release:
Recent unprecedented disclosures of government malfeasance have forced Americans to confront unpleasant truths about the nature of our government. Americans do not trust the government – and in record numbers. It is understandable, and equally troubling, then, for Americans to come to expect opaqueness from a government that commonly flouts the U.S. Constitution and the laws intended to bind its authority. We shouldn’t be too surprised to learn that the government is still fighting a seventy-four-year battle over transparency and the historical record, dating back to World War II. …
The implications of these revelations are far-reaching, just as Taxpayer Education Foundation reported previously. In a December 2011 analysis of the extensive body of scholarship concerning FDR’s foreknowledge of the Japanese military’s naval codes and planned attack at Pearl Harbor, Taxpayer Education Foundation’s research director, Dennis Constant, wrote, “In September and October of 1940, Army and Navy cryptographers solved the principal Japanese government code, the Purple code, which was the major diplomatic code. The naval codes were a series of 29 separate operational codes. According to Stinnett, Japan used four of these codes to organize and dispatch her warships to Hawaii by radio. American cryptographers had solved each of the four by the fall of 1941, even though the Japanese were introducing minor variants every three months to foil cryptographers.”
“Taxpayers, regrettably, are forced to fund the government even when its policies are opposed to the interests of Americans and our liberty,” said Jared Labell, executive director of Taxpayers United of America (TUA). “While it is clear that the government is naturally incentivized to over-classify information and maintain strict secrecy over its vast realm of perceived interests, Americans must demand transparency and support all efforts to pull back the curtain on the machinations of the government. Disclosures not only help clarify the historical record and provide further insights into past policies, but they are tremendous opportunities to learn how tax dollars are spent by the government and in pursuit of what ends.”
“These recent legal developments further threaten the government’s ability to act in complete secrecy without risk of exposure,” said Labell. “We aren’t certain of the precise revelations contained in the sealed grand jury testimony. The documents might further corroborate longtime claims made by numerous historians implicating FDR and his administration in failing to protect the American military personnel based at Pearl Harbor, although the Japanese naval codes were deciphered. The code-breaking revelations the following year in the Chicago Tribune did not please the administration, to say the least.” …
President Woodrow Wilson signed the Espionage Act of 1917 into law in June of that year, only a couple months after the United States entered World War I. The case against the Chicago Tribune, its managing editor, and its reporter, Stanley Johnston, is the only known attempt to charge journalists with violating the Espionage Act, although the panel eventually declined to indict.
The government has until September 29 to appeal to the full 7th Circuit Court, or opt to appeal to the U.S. Supreme Court until mid-December 2016. Litigation director for the Reporters Committee for Freedom of the Press, Katie Townsend, summarized what’s at stake in this case that dates back nearly three quarters of a century, “The Tribune case speaks directly to a fundamental tension at the core of our democracy, involving the public’s right to know and the government’s duty to protect its citizens in time of war.”