With the Battle of Midway as a backdrop, the US Navy found itself opening a war on a new front – the courtroom.
On June 7, 1942, the Chicago Tribune published a story that claimed the US Navy had advance knowledge of what the Japanese naval fleet would do. The story was full of detail. It names the Japanese vessels in the battle and gave details about their strategy. Anyone who read the article had to know that the US was able to read Japan’s encoded messages.
What followed was a legal battle as the federal government tried to prosecute Tribune journalists under anti-espionage laws. A grand jury was impaneled to seek an indictment.
In the end, the grand jury did not indict the journalists. For the last 74 years, the testimony that those jurists heard has been kept secret from the public.
Elliot Carlson, a historian from Maryland, is now closer than ever to getting those documents released. Lawyers for the Department of Justice have argued that releasing those documents undermines the secrecy of the grand jury. Further, they argue that court rules do not allow for releasing confidential grand jury records just because they hold historical value.
In spite of those arguments, a federal district judge in Chicago ruled in favor of Elliot last year. On Thursday, a three-judge panel of the 7th US Circuit Court of Appeals affirmed that decision.
“Obviously, there’s a gray area when an argument can be made of a threat to national security, but there’s no gray area here,” said Jim Grossman of the American Historical Association, which filed a petition in support of Carlson. “There’s no reason not to provide access to these materials.”
The Justice Department did not comment on the case, but they still have options. They could seek a hearing from the entire appellate court or take the case to the Supreme Court.
Carlson, 80, is a former newspaper journalist who is writing a book about the Tribune incident. He’s eager to get those records after spending four years trying to get them released.
“I have a manuscript that’s complete but for the last chapter,” he said. “I want it to be finished as soon as possible.”
There are many secrets from WWII that have been long available to historians. Michael Sherry, a history professor at Northwestern, remembers being handed still-classified papers by federal archivists in the 1970s without any hesitation.
Since then, the bureaucracy has become harder to work with. Generally speaking, historians have still been able to access the documents they need.
“It’s not regularly an obstacle,” he said. “What makes this case distinctive is not the period but the fact that it involves grand jury records.”
Grand Jury records are sealed to protect the confidentiality of the proceedings. The US Supreme Court called grand jury secrecy vital to safeguard witnesses who might be in danger if their testimony became public. It also protects the privacy of people who are investigated but not charged with a crime.
Exceptions have happened in the past if a case was historically significant. The Watergate and the Alger Hiss Russian espionage case were unsealed. The Justice Department, though, has held firm that court rules do not list historical significance as a reason to release grand jury documents, so it should never be done.
The Tribune affair began when Stanley Johnston, a Tribune war correspondent aboard a Navy transport in the Pacific, found a decoded message that gave details about the Japanese fleet and its movements.
The ship Johnston was on landed in San Diego on June 2, 1942. Four days later, the news of the Battle of Midway broke. The Tribune rushed to print the story about the Navy’s prior knowledge.
President Franklin D. Roosevelt was a political foe of Tribune publisher Colonel Robert M. McCormick. He was furious about the news story. The Justice Department put together a case against Johnston even though some members of the department were skeptical of the benefits of such a case.
In the end, after hearing all the testimony, the grand jury refused to indict Johnston. Because there was no indictment, the Justice Department says the historical significance is lessened.
Katie Townsend of the Reporters Committee for Freedom of the Press has a different opinion.
“We thought the issues that were presented were actually very timely,” she said. “It’s the first and only time the U.S. government has attempted to prosecute a member of the news media in a leaks case.”
As it turns out, one of the government’s biggest worries never happened. The Japanese never stopped using the code that the US had broken throughout the remainder of the war.
Carlson says that the Tribune’s decision to run the story and the government’s reaction to it, make a compelling story worth learning.
“Johnston was a journalist who you might say violated the code that journalists observe, and that made it a very interesting story,” he said. “The story he ran could have had disastrous results. It was certainly worth pursuing how he happened to obtain that information.”