From June 4 to 7, 1942, the U.S. Navy ambushed and then devastated a Japanese strike force near Midway Island. Tokyo’s plan to occupy the Hawaiian Islands had relied on seizing that tiny atoll halfway between Asia and North America. On June 7, six months to the day after Pearl Harbor, a front-page report in the Chicago Tribune hinted at the astonishing secret that enabled the American victory — a rout from which the Imperial Japanese Navy never fully recovered.
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The scoop said the U.S. had known when the Japanese convoy would sail where, with what assets: four aircraft carriers, two battleships and an armada of support vessels. Savvy readers knew that the dozen paragraphs of intricate details had to mean Washington had cracked Japan’s secret naval code. But Tribune war correspondent Stanley Johnston’s article didn’t explicitly state that fact, or explain how he knew of it.
The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security. Documents released in 2013 show U.S. Solicitor General Oscar Cox arguing that while “it is hard to believe that any judge or jury would take a sympathetic view of (Johnston’s) case,” the government would have trouble proving that Johnston intended to aid Japan and thus should be executed.
But Roosevelt, who despised conservative Tribune publisher Col. Robert R. McCormick, also squeezed Biddle. So on Aug. 7, 1942, a special prosecutor said he would empanel a federal grand jury in Chicago to pursue Johnston, managing editor J. Loy Maloney and the Tribune itself. The grand jurors eventually decided not to indict. And for 72 years, the secret testimony of some 13 witnesses — naval officers and editors from the Tribune and two other papers that ran its story — has remained sealed.
On Tuesday, though, a coalition of American and naval history groups and the national Reporters Committee for Freedom of the Press petitioned the U.S. District Court in Chicago to unseal the transcripts, evidently stored at a National Archives repository in College Park, Md.
We customarily don’t tell judges how to rule. But the 50-page filing makes a strong case for breaching grand jury secrecy in what the petitioners call “the first and, to date, only attempt by the U.S. government to prosecute a member of the mainstream press for alleged violations of the Espionage Act of 1917.”
Grand jury testimony is secret but, especially as the need for confidentiality recedes, not sacrosanct: Courts have unsealed proceedings in such historically significant cases as those of Richard M. Nixon’s Watergate debacle, accused Soviet spy Alger Hiss, executed “atomic spies” Julius and Ethel Rosenberg, and Teamsters boss Jimmy Hoffa. Disclosures typically occur when the principals are dead, privacy issues are moot, and so are such concerns as national security.
This case appears to meet all the criteria for unsealing that other courts have used. The last witness whose identity is known died 17 years ago, and a current judge could order minimal redaction of any lingering threat to privacy.
Opening this testimony could explain how Johnston learned one of this nation’s most valuable secrets, how perilous the Navy thought the leak was, and why the investigation halted; the filing alludes to the possibility that the Navy didn’t want to tell grand jurors about its codebreaking coup. Another question: Did Roosevelt’s administration seek an indictment to punish the Tribune for editorials or articles that had cast doubt on U.S. defense policy?
Many historians think Johnston got the scoop through intentional or inadvertent help from Morton Seligman, a U.S. Navy commander. 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. That June 7, as the Navy’s furious 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 on the Lexington.
By that night, King’s censors revised their rules to prohibit news stories about enemy movements — a tacit confession that the Tribune hadn’t broken any laws or rules. Initially, Tribune editors said the story’s details had stemmed from Johnston’s vast knowledge of Japan’s navy.
But there’s more here than mystery. “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,” the filing states, alluding to disputes that resonate today: what the government gains by prosecuting journalists, what the nation loses when reporters are compelled to identify their sources — and what are the responsibilities of the government, and the press, to protect secrets.
In writing before about this case, we’ve noted that our predecessors knew what it was to have the full force of the federal 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 initial 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.”
That one of the most crucial press freedom cases in this nation’s history emerged from one of its greatest naval victories should encourage federal judges here to carefully consider this petition. Citizens who wrestle with issues of liberty and security would have a more thoughtful tomorrow if they better understood what happened yesterday.
Many documents from this case have become public. Those likely to be the most sensitive remain secret in that Maryland repository: Enclosures to Serials 1 through 11 for File Number 146-7-23-25.
Will Chicago judges break that code?
