Secrecy And Leaks : When The U.S. Government Prosecuted The Chicago Tribune

Published: Oct 25, 2017 Briefing Book #608 Edited by John Prados

For More Information Contact: John Prados, 202/994 – 7000

Lessons On Sources And Methods From The Battle Of Midway, 1942

Washington, D.C., October 25, 2017 – The U.S. government's most significant prosecution of an American media outlet prior to the Pentagon Papers fell through during World War II when a grand jury refused to indict the Chicago Tribune in 1942 for an article stating the U.S. Navy had advance knowledge of Japanese plans to attack Midway Island in June of that year. Documents posted today by the George Washington University-based National Security Archive detail FBI, Justice Department, and Navy efforts to charge the Tribune with damaging national security by indirectly alluding to U.S. penetration of Japan’s naval codes – one of the most sensitive secrets of the day. But federal prosecutors dropped the case after senior officials expressed doubts about whether the Tribune and its correspondent knowingly acted improperly and after Navy brass chose not to allow public testimony for fear of increasing the chances Japan would realize its codes had been compromised. The Tribune case was the first time the U.S. government tried to pursue charges against a major media source under the Espionage Act for publishing classified information – making it of particular interest in the current political environment.

Today’s posting draws on grand jury records that had been sealed for decades until historian Elliot Carlson, joined by the Reporters Committee on Freedom of the Press, the National Security Archive, and other historians’ organizations, filed a lawsuit for their release. A court ruled in favor of the suit on June 10, 2015, but the government appealed, sending the case to the U.S. Seventh Circuit Court of Appeals, which decided 2-1 on September 15, 2016, to unseal the files. They are now available to researchers at the National Archives and Records Administration in College Park, Maryland. This is the latest in a series of judicial decisions to open grand jury records of historical importance, including from the investigations of Alger Hiss and Julius Rosenberg.

The records contained here are among the most substantive relating to the case. They feature communications from or to FBI Director J. Edgar Hoover, Attorney General Francis Biddle, federal prosecutors, U.S. Navy officers, and others; as well as grand jury testimony and other evidence.

* * * * * By John Prados Today we hear many assertions that information must be kept secret in order to safeguard the national security. These appeals are never more justified than in wartime. One of the central examples of this kind of security dilemma is our subject here. Its records have been shrouded in secrecy for decades, until a legal case fought by the Reporters’ Committee for Freedom of the Press brought them to light. The case concerns World War II, when a combination of technological advances and breakthroughs in mathematical analysis developed the art of codebreaking to a very high level. One result of this was that the United States broke (the technical term is “penetrated”) a variety of Japanese code and encryption systems, including both the Japanese diplomatic codes (the U.S. called them “Purple” and “Red”) and their main fleet code (which the U.S. termed JN-25). The continued utility of these penetrations depended on Japan not discovering the leaks, and not changing their codes. This made the Chicago Tribune affair a high-stakes national security matter from the beginning. Briefly, the alleged leak took place on June 7, 1942, just after the end of the Battle of Midway, when the Tribune published an article in its Sunday edition, “Jap Fleet Smashed By U.S., 2 Carriers Sunk at Midway,” with an attention-grabbing side article, “Navy Had Word of Jap Plan to Strike at Sea.”[1] Not all the details in these articles were accurate – the Japanese fleet had lost four aircraft carriers, not two (Akagi, Kaga, Hiryu, Soryu) – but the Tribune had had all the warships’ names at a time when no one else did. The Chicago newspaper had also described the disposition of other enemy fleet detachments with precision. As the Navy and the Franklin D. Roosevelt administration privately knew, the details the Tribune had corresponded to a top secret dispatch the U.S. Pacific Fleet commander, Admiral Chester W. Nimitz, had sent on May 31 (Document 3). That radio message, distilled from Japanese naval communications, described the organization of the enemy fleet and its purpose in attacking Midway. It had been the product of a radio intelligence unit at Pearl Harbor known as Station Hypo.[2]

Experts at the Office of Naval Intelligence were quickly able to show the correlation between the Nimitz dispatch and the Tribune article (Document 4). There were other equally disturbing elements in the news story: it attributed the knowledge to “naval intelligence” and sourced it to Washington, almost directly implicating the Navy’s codebreaking operation; and it referred to advance knowledge, which suggested this even more. On July 9, Navy Secretary Knox and Attorney General Francis Biddle met with President Roosevelt (FDR) at the White House. By that time the Navy had a clearer idea of what had happened. A Chicago Tribune war correspondent who had survived the sinking of the aircraft carrier Lexington during the May 1942 Battle of the Coral Sea had been among the survivors carried back to the United States on board the Navy transport Barnett. While on that ship the reporter, Stanley Johnston, had had access to Navy radio messages. Among these was the Nimitz dispatch noted above. Navy analysis (Document 4) demonstrated that even the mistakes in the admiral’s message were replicated by the Chicago Tribune article, proving the relationship between the two. By June 9, Secretary Knox had data from a preliminary inquiry by the Barnett’s captain that showed that survivors of the Lexington had been helping his own radiomen, and had very likely handled the Nimitz message (Documents 21 and 22). FDR and Knox wanted action. That same day at the Navy Department, Stanley Johnston arrived from Chicago to give a statement to senior officers, including Admiral King’s chief of staff as well as the director of naval intelligence. According to the Navy’s record (Document 8), reporter Johnston recounted that he had overheard naval officers aboard the Barnett discussing the contents of the Nimitz message, including the identities of warships named there. At first Johnston stuck to that version, but he returned in the afternoon to tell some of the officers who had listened to him earlier that the identities of Japanese ships had actually come from a note listing them he had found on the table when swiftly packing to leave the ship at San Diego. By June 11, when Admiral King’s office established that Johnston had been accredited as a war correspondent by the Navy at Pearl Harbor, the broad outlines of the Chicago Tribune case had been determined. Perceived as a miscreant, Johnston was subjected to significantly intrusive investigation (Documents 11, 12, 13). Unfortunately for the Navy, its initial sense of clarity eroded steadily. An FBI report uncovering very derogatory material alleged to be from Dutch and British sources (Document 11) was cancelled out because U.S. military and naval intelligence, and the FBI itself, had all checked out Johnston when he had been under consideration as a war correspondent, and all had passed him. In addition the reporter had behaved heroically at the Battle of the Coral Sea, helping rescue seamen of the Lexington, to the extent that the ship’s captain recommended Johnston, a civilian, for a medal. Next it turned out that “accreditation” did not mean what authorities at first supposed. Johnston had been given his credentials in a rush because the Lexington was about to sail

from Pearl Harbor. His signed agreement contained no stipulation of responsibility to submit all writings for censorship because Washington’s directive to enforce that stricture had yet to arrive in Hawaii. With Johnston there had been only oral exchanges. Furthermore, the General Code for censorship contained no prohibition against mentioning enemy warships, which is what Johnston’s Chicago Tribune story had done (Documents 14, 15, 17). The Tribune editor who had handled the Midway story relied upon the differences between his material and the General Code to satisfy himself that the article required no special censorship. The editor, Loy “Pat” Maloney, had added the reference to naval intelligence and the Washington location to the story, which Johnston had actually written from Chicago. Another problematic aspect of the case is that the Navy was partially at fault too. Captain Frederick Sherman of the Lexington had kept his restrictions on the correspondent simple. Sherman’s executive officer, Commander Morton I. Seligman, had gotten even more friendly with Johnston than his captain. There were also the arrangements for handling communications while aboard the Barnett. A board of inquiry held at San Diego on June 11 (Document 20) showed there was evidence to back Johnston’s account of how he had obtained his secret knowledge. Chicago Tribune publisher Robert R. McCormick had kept his newspaper on a conservative bent, opposed to FDR’s administration, but here he tried to fend off controversy, sending Johnston and Maloney to Washington to give statements, following with a telegram to Admiral King promising cooperation and declaring he had not seen the Midway story until it was out (Document 6). McCormick was right to be concerned—his newspaper had already published scoops against FDR, including one on U.S. war plans (“Plan Dog”) on the eve of Pearl Harbor, that the government had sorely wanted to prosecute (Document 10). At the Justice Department, Attorney General Biddle assigned an experienced lawyer, William J. Mitchell, to be prosecutor. Surveying elements of the case, Mitchell quickly perceived its weaknesses. For one, the case concerned a subject the public would hardly understand—the problems surrounding censorship and accreditation. For another, there were defects in the Espionage Act that would complicate obtaining a conviction. These included the problem of showing that defendants had specific intent to harm the United States and the focus of the law’s language on turning over a document or object rather than the information itself (Document 18 and 19). Mitchell’s analysis led Biddle to order even more detailed investigations in an effort to establish a detailed chain of “custody,” as it were, of the information in the Nimitz dispatch. On June 26 Biddle met with Secretary Knox, who upon returning to the Navy Department first learned of the military and naval intelligence approval of credentials for Johnson (Document 32). The FBI carried out an aggressive, multifaceted inquiry into the handling of the Nimitz dispatch and other information—for example, Johnston’s possession of a set of pictures of the damaged Lexington that had been taken by a photographer aboard the

cruiser Minneapolis became another focus. The FBI developed a considerable amount of information along the lines that Prosecutor Mitchell (Document 19) had wanted (Documents 24-33). The procedures used to handle messages aboard the Barnett were re-confirmed. Several officers who had survived the Lexington sinking and knew Johnston affirmed they had seen notes that contained the identities of Japanese warships grouped in an order-of-battle style. Repeated questioning also showed weaknesses in Commander Morton Seligman’s account. Where he had maintained that there were no notes and no conversations about Japanese forces off Midway, Seligman later came around to a version that he “might have” made notes or read from cables in a situation where Johnston could have overheard him (Documents 29 and 30). Seligman would later repeat this version in his grand jury testimony (Document 38). On the other hand, Seligman had been a hero of the Battle of the Coral Sea, helping to keep the Lexington afloat, for which he won the Navy Cross. He had been blown out of a scupper as the ship sank and sustained back injuries and a concussion. At this stage the Justice Department faced making a final decision on what to do with the Chicago Tribune affair. In mid-July Prosecutor Mitchell wrote a memorandum for the record (Document 35) expressing doubts about obtaining convictions in possible cases due to defects in the statutes under which crimes had to be charged, and a report to Biddle and Knox in which he analyzed the prospects (Document 36). He reiterated the legal obstacles to trials, and he added a number of practical or political reasons why proceeding would not be wise. On July 27 Assistant Attorney General Wendell Berge concurred—the legal grounds were too “tenuous” and the chances the public would misunderstand too great (Document 37). Attorney General Biddle had another meeting with FDR on July 16.[3] Secretary Knox also held to his position that the government should prosecute. The Department of Justice decided to narrow its charges, dropping the espionage count against the reporter, but pursuing the Chicago Tribune for not submitting the material to censorship. On August 7 Biddle held a press conference at which he declared a grand jury would be convened in Chicago to hear evidence. Today’s posting reproduces a synopsis of the testimony of Commander Seligman (Document 38) and the full statement of Stanley Johnston (Document 39). Seligman held to his ambiguous “might have” version of events. Johnston articulated the same story he had given the Navy in early June. Despite the position of Secretary Knox, Admiral King refused to permit testimony by any naval intelligence figures, so jurors never learned of that aspect of the case. They were confronted with a simple charge that someone had utilized secret information, but without a clear case under the Espionage Act, and in a situation where the Navy itself seemed to have enabled that result by mishandling the information and not clearly restricting the war correspondent. The grand jury refused to indict anyone in the Chicago Tribune case. Senior government officials from President Roosevelt on down exhibited no concern for Freedom of the Press or First Amendment issues throughout the Chicago Tribune Midway affair. They acted entirely on the basis of the alleged threat to the security of the Navy codebreaking operation. At the same time they had little idea of the actual dimension of

the threat of disclosure. The FBI assembled a detailed analysis of the status of Japanese diplomats, officials, and businessmen in the United States at the time of Pearl Harbor, where they had been held, and what access they had had to media before leaving the U.S. on June 18 (Document 40). The report demonstrated there was some, but very limited, potential access by Japanese persons to media where they might have read of the government’s pursuit of the Chicago Tribune and the reason for it. Admiral King’s reluctance to provide expert witnesses was based on an expectation that a trial, with attendant news coverage extending the period the Midway leak would be before the public, enhanced Japan’s chances of discovering its codes had been compromised. King’s refusal set the stage for the Midway grand jury. Ironically, in the Chicago Tribune case it was the public itself that protected the First Amendment by refusing to indict.

DOCUMENTS

Document 01

John Prados Declaration, October 30, 2014 2014-10-30 Source: Author’s files John Prados, author of this posting, gave an affidavit, and the National Security Archive joined as a plaintiff, in the Elliot Carlson et. al. v. United States of America suit. In this statement Prados argued that the declassification of other records had revealed the fact of the U.S. Government’s sensitivity to the Chicago Tribune’s account of the June 1942 Battle of Midway with details strongly suggesting the U.S. had advance knowledge of Japanese forces and plans that had to have come from codebreaking. What the record lacked was knowledge of what grand jurors were told about the actuality of United States codebreaking efforts, and whether prosecutors aimed at the journalist involved, the naval officer who had helped him, the newspaper, or all three. There was also a question as to whether the United States in this action was attempting to punish the Chicago Tribune for previous reporting. A significant public interest exists in this knowledge.

Document 02

Judgment, Carlson et. al. v. United States, United States Court of Appeals for the Seventh Circuit, September 15, 2016, Case 15-2972, Document 39 2016-09-15 In June 2015, the District Court for the Southern District of Illinois found in favor of the plaintiffs led by Elliot Carlson. The Department of Justice (DOJ) appealed, claiming under the Code of Federal Criminal Practices that the government had custody of the grand jury records and, with Rule 6 (e) of the code, the court had no right to open them. The

government acknowledged it had no further claim to safeguard national security in these records, basing itself purely on the procedural issue. The Seventh Circuit tore the government’s position apart, showing how the courts, including the Supreme Court, prior to creation of the Federal Criminal Practices code, had always controlled records, and that grand jury records automatically constituted components of court records. Further, the Justice Department argument represented an attempt to generalize a restriction from a different codicil of Rule 6(e), one that hardly seemed to apply in the clause that was the main focus of the DOJ argument. The Appeals Court found the government’s position without merit, and by a 2-to-1 vote affirmed the District Court had had the authority to open the Midway grand jury records. Judge Diane Sykes, dissenting, opined that no one had ever inserted a “historical interest” rationale for courts opening records, and therefore the District Court’s action had been improper. The Appeals Court reinstated the Southern District’s order that the records be made available. When time ran out on the Justice Department’s statute of limitations to file with the Supreme Court, in December 2016 the Midway grand jury records were unsealed.

Document 03

Pacific Fleet Original Message, May 31, 1942 1942-05-31 Source: NARA, Records Group (hereafter “RG”) 60, Case file 146-7-23-25, box 2, “Enclosure to Serial 1, Grand Jury Exhibits.” A Pacific Fleet (CINCPAC) message sent at about 2:30 AM (Greenwich Mean Time) on May 31 revealed the scale and broad distribution of forces Japan would use to attack Midway Island and subsequently invade it. Importantly, the dispatch identified four specific Japanese aircraft carriers (Akagi, Kaga, Soryu, Hiryu) included in the actual strike force, along with its other elements; as it did for the invasion force and the submarine (“sail sail”) scouting element. The existence of this message four days ahead of the main events of the Midway battle demonstrates U.S. advance knowledge. The specification of specific aircraft carriers could only have come from reading Japanese message traffic. The rendering of this message on paper tape corresponds to the format in which a secret message would emerge from a decryption device, in this case aboard the transport ship U.S.S. Barnett.

Document 04

Office of Naval Intelligence Comparison of Chicago Tribune article with Navy Dispatches 1942-06-11 Source: NARA, RG 60, Case File 146-7-23-25, box 1, file: “Serial 1, Feb. 1–June 11, 1942 (1).”

On June 7, 1942 the Chicago Tribune published a pair of front-page stories, one of which tabulated the same details of Japanese naval forces as had appeared in the May 31 Pacific Fleet dispatch, the other of which claimed foreknowledge of Japanese intentions. In this document, the Office of Naval Communications (F-34) copy of a Navy intelligence report, analysts compare contents of the CINCPAC dispatch with the text of the Chicago Tribune press account.

Document 05

Navy Department Communiques regarding the Midway Battle, June 15, 1942 1942-06-15 Source: NARA, RG 60, Case File 146-7-23-25, box 2, file: “Enclosure to Serial 1, Grand Jury Exhibits.” One element in constructing the stories which appeared in the Chicago Tribune was the actual information distributed by the U.S. Pacific Fleet in its official description of the Midway battle. This document collects the communiques the Navy actually issued. Admiral Chester W. Nimitz, the Pacific Fleet commander (CINCPAC) who authorized these releases, only claimed the destruction of three of the Japanese aircraft carriers, while admitting no more than damage to one U.S. carrier. (This corresponds to a mid-battle situation when the last remaining Japanese carrier had been underneath a cloud while American planes attacked, while the U.S. carrier Yorktown, damaged, had yet to be sunk by a Japanese submarine.)

Document 06

Telegram, Robert R. McCormick to Fleet Admiral Ernest J. King, Explanations for Chicago Tribune’s Article, June 10, 1942 1942-06-10 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 1, Feb. 1–June 11, 1942.” Chicago Tribune publisher Robert McCormick, upon learning of the paper’s publication of details of the Midway battle, immediately telegrammed Admiral Ernest J. King, Commander-in-Chief of the United States Fleet (COMINCH), defending the stories as pumping up American morale while revealing nothing to the Japanese. McCormick also revealed Stanley Johnston as author of the (unsigned) articles, and defended him as having held back his information until after the victory had been announced. McCormick also noted that his reporter had sent his information and photos to Washington. The Tribune story was datelined from there. McCormick promised to make Stanley Johnston available for the Navy to interview.

Document 07

Letter, Admiral Russell Willson to Attorney General Francis Biddle, June 11, 1942 1942-06-11 Source: NARA, RG-60, Case File 146-7-23-25, box 1, folder: “Serial 1, Feb. 1–June 11, 1942.” In this letter, Admiral King’s chief of staff, Admiral Russell Willson, informs Attorney General Francis Biddle that war correspondent Stanley Johnston had been carried aboard the Navy transport Barnett. At this date the Navy was already aware that the CINCPAC dispatch (Document 1) had been received aboard the Barnett on May 31. By this time naval officers had already questioned Johnston, who first described his scoop as having been picked up from scuttlebutt aboard ship, but later articulated a version in which he found details of the Japanese ships scribbled on a piece of paper that lay on a desk he shared with other U.S. Navy officers.

Document 08

Memorandum, Admiral Theodore S. Wilkinson to Mr. Arthur Henning, Return of Materials sent by Chicago Tribune, June 13, 1942 1942-06-13 Source: NARA, RG-60, Case File 146-7-23-25, box 2, file: “Enclosure to Serial 1, Grand Jury Exhibits.” Here the Director of Naval Intelligence, Rear-Admiral Theodore S. Wilkinson, returns documents to the Chicago Tribune’s Washington bureau chief, Arthur S. Henning. The top paper, a statement from Stanley Johnson recorded on June 9, maintains he overheard details of the Japanese fleet in a conversation among American officers. Later that day Johnston returned to assert he found the Navy information on the Japanese on a piece of paper as he was using his typewriter to clean up stories. Next is a parallel statement from Tribune editor J. Loy “Pat” Maloney, who termed charges against his newspaper “outrageous and ridiculous.” Maloney asserted that Johnston had called the office upon the Barnett’s arrival at San Diego early in June to say he had a fascinating account of the recent Battle of the Coral Sea, that had taken place in early May 1942. Maloney instructed him to return to Chicago. Admiral Nimitz’s announcements of the Midway victory (Document 5) came while Johnston was writing stories on Coral Sea. According to Maloney, at that point Johnston came to him and said that a letter he had written but not mailed, from San Diego, contained the best information possible about the Japanese ships encountered near Midway. Maloney considered that the Johnston information supplemented that in the Nimitz communiques. Johnston insisted the information he

gave the Tribune was not from a secret document but from conversations among ten or a dozen officers aboard the Barnett.

Document 09

Memorandum, Admiral Theodore S. Wilkinson to J. Edgar Hoover (FBI) re Evidence on Chicago Tribune Leak, June 13, 1942 1942-06-13 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” This initial Navy compilation for the FBI draws primarily on Navy material and shows how much was already known from its sources (Documents 20-24) about the Tribune leak and how this happened. The paper repeats the naval intelligence comparison of the Nimitz dispatch with the Tribune article (Document 4), includes the Johnston interview with top naval officers, and lays out details learned from a number of naval personnel aboard the Barnett, the aircraft carrier Lexington, whose survivors Barnett had conveyed to San Diego, in Hawaii, and from officials responsible for censorship. The paper further proposes statutes under which either or both Johnston and the Tribune could be prosecuted.

Document 10

FBI Case Summary re Previous Chicago Tribune Leak (Plan Dog), June 15, 1942 1942-06-15 Source: NARA, TG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” The Midway leak was not the first time the Roosevelt administration had faced challenges from the conservative Robert McCormick and his Chicago Tribune, printing leaked government secrets. Here the FBI reports on an earlier leak. The material appeared in the newspaper on December 4, 1941, only a few days before Japanese forces attacked Pearl Harbor and began the war in the Pacific. The leak consisted of details of a military contingency plan for hostilities, plus notes on United States plans for defense production quotas. An FBI investigation established there were so many copies of the “Plan Dog” contingency paper, and so many persons with authorized access, that it was impossible to find the origin. Production quota information, the FBI learned from a trusted source, had been released by an isolationist senator. The paper’s discussion of statutes for potential prosecution lists so many senior War Department planners as to make it evident a prosecution could only be attempted at the cost of serious disruption of regular activity.

Document 11

Memorandum, J. Edgar Hoover (FBI) to William J. Mitchell (DOJ), Background of Stanley Johnston, June 18, 1942 1942-06-18 Source: NARA, RG-60, Case File 146-7-23-25, box 2, file: “Serial 2: June 12, 1942.” The first of several investigative reports into the background of journalist Stanley Johnston, this document paints a picture of a somewhat off-color character, of Australian background, who kicked around at several trades until settling on journalism. Among other things, the FBI insinuates Johnston may have been a German spy, and had been of interest to both Dutch and British intelligence authorities. The FBI quotes his employer, Tribune publisher Robert McCormick, as saying Johnston was a “phony.” This portrait is at odds with Johnston’s heroism in helping save American sailors of the carrier Lexington at the Coral Sea battle, as well as with the handwritten cover note, which complains that “we cannot make any use” of the derogatory material. The commentator notes Tribune editor Maloney’s statement that before the newspaper hired Johnston it asked both U.S. military and naval intelligence for a name check on Johnston and both had cleared him.

Document 12

FBI Memorandum, Investigative Report on Stanley Johnston, July 29, 1942 1942-07-29 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 7, August 14, 1942 (2 of 2).” Chicago’s FBI office reports on Stanley Johnston’s activities after the Midway battle, which include a Chicago Tribune-sponsored lecture tour through the Midwest describing the Battle of the Coral Sea. The Bureau reports on divorce proceedings, domiciles, telephone numbers Mrs. Johnston called while her husband was in Washington responding to the U.S. Navy inquiry, and the contents of a telegram Stanley had sent to editor Maloney from San Diego.

Document 13

Memorandum, J. Edgar Hoover (FBI) to Attorney General Francis Biddle, Accreditation of Stanley Johnston, June 18, 1942 1942-06-18 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” FBI Director Hoover copies Attorney General Biddle on the information sent to William J. Mitchell, the prosecutor assigned to the Midway case by the Department of Justice. On

June 15, the prosecutor had circulated a memorandum (Document 15) enumerating issues he anticipated would arise if a criminal case was pursued. One of these was the precise responsibilities which lay on Stanley Johnston as a consequence of Navy approval of his accreditation as a war correspondent. Hoover reports that Washington authorities had levied no special requirements on Johnston, and describes in detail the censoring applied to Johnston articles, and especially photographs, of the Coral Sea battle.

Document 14

Memorandum, Byron Price (Director of Censorship) to Attorney General Francis Biddle, Accreditation and Newspaper Code, June 20, 1942 1942-06-20 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 3, June 13-20, 1942.” The Attorney General here discovers that the national censorship authority defers to the military services, and that in its overall General Code for censorship imposes no requirement for journalists to submit their stories for censorship, assuming this will be done by Army or Navy field commands in direct contact with the war correspondents. The existing General Code also contains no prohibition against the mention of specifics of enemy forces, only strictures against such revelations regarding United States or allied forces.

Document 15

Memorandum, William D. Mitchell (DOJ) to J. Edgar Hoover (FBI) re Regulations applicable to publication and censorship at the time of Midway, June 15, 1942 1942-06-15 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” Prosecutor Mitchell seeks additional information on the censorship code applicable to the Chicago Tribune story as it appeared on June 7. He notes the Tribune argument that mention of enemy force specifics, when far away from the United States, was permitted. Mitchell also notes the Tribune’s contention that censorship authorities had been in contact with the newspaper about the story of June 7 and had conceded that point. Mitchell further describes journalist Johnston as believing that his stories were being passed by the censors, including his Midway story which appeared on June 7, 1942. Without definite proof of special instructions obliging Johnston to seek clearance, Mitchell foresaw that a prosecution would fail.

Document 16

Memorandum, Oscar Cox (DOJ) to Attorney General Francis Biddle, Chicago Tribune Leak Trial Issues, June 16, 1942 1942-06-16 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” Oscar Cox, special assistant to the Attorney General, comments on issues expected to arise from prosecution relating to the Chicago Tribune story. Mr. Cox anticipates that the offending reporter and the editors of delinquent newspapers could be put on trial. The trials would be separate unless evidence of conspiracy existed. After elaborate citations of legal precedents, and a chain of logical reasoning attempting to identify the point in the process of publishing a leaked national security secret where the “crime” of its revelation occurs, Cox relies upon practical politics to argue that a venue other than the place of publication would “raise a nation-wide outcry from the press.”

Document 17

Memorandum, J. Edgar Hoover (FBI) to Attorney General Francis Biddle, re Applicable Censorship and Transmission of the Leaked Information, June 17, 1942 1942-06-17 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” Director Hoover forwards to Attorney General Biddle information he had sent the previous day to Prosecutor Mitchell which details the censorship system in effect at the time of the Midway battle, showing that mention of enemy ships was not specifically enjoined, and that military and naval authorities were responsible for the actual approval of information released. The FBI also learned from Navy officials that Stanley Johnston, specifically, had never been required to sign the full set of agreements that would have obliged him to submit writings for approval.

Document 18

Memorandum, William J. Mitchell (DOJ) to Attorney General Francis Biddle re Lessons from Chicago Tribune Case, June 17, 1942 1942-06-17 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 3, June 13-June 20, 1942.” In this memorandum, Prosecutor Mitchell recommends actions to prevent any repetition of the Chicago Tribune leak: amending Army and Navy regulations to specify that all articles by correspondents be submitted for military censorship, and adding an article in the Code of Wartime Practices for censorship prohibiting naming of enemy, as well as friendly, forces unless specifically approved.

Document 19

Memorandum of Law, William J. Mitchell to Attorney General Francis Biddle, June 18, 1942 1942-06-18 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” Prosecutor Mitchell further explores the statutes and rationales for a case against the Chicago Tribune. Under the Espionage Act, he argues, a finding of specific intent to damage the United States would be central to the case, and both at the time and as the investigation proceeded the newspaper did not understand exactly how its reporting damaged national security. Basing a prosecution on the “delivery” of secret information, in this case to a reader of a newspaper, was a stretch of the notion (in the law) that documents with secret information were delivered to an enemy. Mitchell rejected notions of a conspiracy, either involving the Chicago Tribune for its previous publication of other U.S. secrets (like the “Plan Dog” story), or involving reporter Johnston and editor Maloney. Another obstacle was the Espionage Act’s provision that disclosure of a secret must be to persons not authorized to receive it. Mitchell saw the war correspondent’s accreditation as an implicit Navy approval for Johnston to reveal what he learned aboard Navy ships. A showing of unauthorized disclosure had to be made by the government, requiring even more investigation of the officers and crew who had been with Johnston. Mitchell recommended that a grand jury, if one were to be empaneled, be situated in Chicago.

Document 20

Navy Department (Western Sea Frontier), Record of Inquiry with Officers of USS Barnett and USS Lexington, at San Francisco, June 11, 1942 1942-06-11 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 5, June 24-30, 1942.” This is the record of a Navy board of inquiry held by the area command responsible for the U.S. West coast. It brought together a number of officers, including those of the transport U.S.S. Barnett, and survivors of the aircraft carrier Lexington, sunk at the Battle of the Coral Sea, on which Stanley Johnston had originally been posted. Commander Morton Seligman, who had been executive officer of the Lexington, was the leader of the contingent of survivors on the Barnett. Seligman had been a hero at Coral Sea and would win the Navy Cross. Stanley Johnston had also behaved heroically and would be commended by the Navy. This inquiry showed that Seligman had a copy of the Nimitz message (Document 3) but did not think it had been shown to Johnston. Commander Seligman did have approval to show material to the journalist but insisted he had never

shown him the Nimitz message. Questions about Seligman’s veracity began to trouble authorities.

Document 21

U.S.S. Barnett Report to Commander, Western Sea Frontier, re Decoding of May 31 Midway Message, June 8, 1942 1942-06-08 Source: NARA, RG-60, Case File 146-7-23-25, box 1, folder: “Serial 5, June 24-June 30, 1942.” An unsigned memorandum from an officer of the transport Barnett described the specific handling of the Nimitz message (Document 3) aboard the ship. It had been ship’s practice not to decode dispatches of this type, but once Commander Seligman arrived with the Lexington survivors, its communications people began to open a wider range of traffic, including this message. At Seligman’s specific request, the memo notes, the message was shown to two other Lexington officers, one of whom shared quarters with Stanley Johnston, plus Commander Seligman, who was in an adjoining room.

Document 22

U.S.S. Barnett Report to Commander, Western Sea Frontier, re Conveyance of Survivors from U.S.S. Lexington, June 9, 1942 1942-06-09 Source: NARA, RG-60, Case File 146-7-23-25, box 1, folder: “Serial 5: June 24-June 30, 1942.” In a follow-up to the previous memorandum, Captain W. B. Phillips of the Barnett repeated some of the same information, adding that he never saw or spoke to Stanley Johnston while on board the ship, that Commander Seligman was showing messages to the journalist and that “it seems probable that the subject named dispatch was shown to Mr. Johnston by a member of the U.S.S. LEXINGTON organization.”

Document 23

Memorandum, Seaman W. B. D. Stroud to Captain W. B. Phillips (USS Barnett) re Access to naval communications for Stanley Johnston, June 13, 1942 1942-06-13 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 5, June 24-30, 1942.”

Seaman W. E. B. Stroud of the transport Barnett relates a conversation between Commander Seligman and the ship’s communications officer, Lieutenant Daniel Bontecou, in which the former Lexington officer instructs Barnett personnel that Stanley Johnston should be given access to a wide range of secret communications.

Document 24

FBI Evidence re Survivors of Lexington, Transport aboard other ships (Barnett), and Midway Leak, Reported at San Diego, June 16, 1942 1942-06-16 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 2, June 12, 1942.” An FBI report from San Diego describes Stanley Johnston’s activities while staying at the Hotel del Coronado, including telephone calls and telegrams. The report also covers an FBI interview with Commander Seligman, one with Commander Herbert Duckworth, who had shared quarters with Johnston aboard the Barnett, and material gathered from several other sailors. Seligman and Duckworth both speculated the reporter had learned the contents of the Nimitz message by listening to former Lexingtonofficers discuss it. Seligman insisted he had never shown it to Johnston or permitted any copy of the dispatch to be made.

Document 25

FBI Evidence re Johnston Responsibility to Review Articles, and Access to Midway Message, Washington, DC, June 18, 1942 1942-06-18 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” This FBI memorandum amplifies previous information on Stanley Johnston’s responsibility and access. Naval officers at Pearl Harbor inform the Bureau they gave the journalist oral instructions to submit his articles for review, and that, while Johnston remained in Hawaii, he did so. The FBI also records that its interview of a communications officer from the Lexington aboard the Barnett describes a routine under which Johnston would have had no access to the Nimitz Midway dispatch.

Document 26

FBI Evidence Update, Washington, DC, June 20, 1942 1942-06-20 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.”

This June 20 update ranges over the issues that were by now staples of the inquiry. Most notably it contains FBI comments responding to questions raised by Prosecutor Mitchell (Document 15), affirms the Chicago Tribune had never been told, orally or in writing, that it had a requirement to seek Navy approval of any article on a naval subject; discusses Johnston’s possession of photographs of the damaged carrier Lexington at Coral Sea, reports a statement from the carrier’s former captain, Frederick T. Sherman, that he had instructed Johnston (orally) to seek approvals of his articles, and quotes a statement from communications officer George Y. McKinnon that he had heard Commander Morton Seligman reading out loud the contents of secret dispatches in Johnston’s presence.

Document 27

FBI Evidence from Hawaii, June 22, 1942 1942-06-22 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” The most important feature of this update from the FBI Honolulu field office concerns the secret Nimitz Midway message (Document 3). The FBI reports its interview with Lieutenant Commander Edward J. O’Donnell, another Lexington officer being conveyed home, that he, Commander Seligman, and others had discussed the Nimitz message in quarters, and that Stanley Johnston may have been within earshot. O’Donnell also mentions seeing notes that reflected the tabulations of Japanese warships contained in the Nimitz message. This is the first evidence that corroborates Johnston’s statement that he had obtained his knowledge of the Japanese warships from a set of notes.

Document 28

FBI Evidence from San Francisco, June 24, 1942 1942-06-24 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 5, June 24-30, 1942.” In a compendium of FBI evidence from the San Francisco field office, a number of Lexington survivors and Barnett crew members are interviewed. One places Stanley Johnston in the room when Navy men were discussing the Japanese battleship Kirishima, a ship-type mentioned in the Nimitz dispatch which had not been present at the Battle of Coral Sea but would be at Midway. Lieutenant Commander O’Donnell repeated his views (Document 27) for this new FBI inquiry.

Document 29

FBI Evidence Update, Washington, DC, June 24, 1942 1942-06-24 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” Zeroing in on the subject of the meeting in Commander Seligman’s quarters where the Nimitz dispatch (Document 3) was discussed, Commander O’Donnell repeats his contention that he had seen notes of Japanese ships taken from the Nimitz message, and this time he places journalist Johnston in the room with his recollection that the correspondent commented there would be “some battle.” Lieutenant Commander Robert E. Dixon also repeats his recollection of a discussion of the Kirishima, and adds that Commander Seligman read aloud from the secret dispatch and that Johnston was in the room. Asked by the FBI, Seligman “did not deny” making notes from the message.

Document 30

FBI Evidence re Morton Seligman and Stanley Johnston, June 25, 1942 1942-06-25 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” Commander Morton Seligman here denies reading aloud from the Nimitz dispatch (Document 3), having any conversation regarding it, or affording Stanley Johnston access to this or other messages. Seligman does not think he made any notes from the dispatch, but repeats the odd formulation that he does not deny it. On the other hand, a third Navy officer now joins the other two in recalling the secret dispatch book being shown to Seligman and a set of notes being made from the dispatch.

Document 31

FBI Evidence Update, Washington, DC, June 29, 1942 1942-06-29 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” Newly promoted Rear Admiral Frederick C. Sherman is questioned more closely regarding the exact words he used to notify journalist Stanley Johnston of a responsibility to have all his writing checked with the Navy. Sherman cannot recall precisely what he said. In general he remembers discussing the issue with Johnston several times and believing that Johnston was fully aware. Back in the U.S., Admiral Sherman, on his way from San Diego to Washington, spoke to Johnston and was told that there had been a problem with one of his articles, which he supposed the editor had submitted for approval, but that the problem had been cleared up and the editor (Loy Maloney) had taken full responsibility. The update also contains minor points regarding the reporter’s accreditation and the Lexington photographs.

Document 32

FBI Evidence re Tribune Approvals, San Diego, June 29, 1942 1942-06-29 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 4, June 21-23, 1942.” The FBI questions officers of the Eleventh Naval District Public Relations office in San Diego, where Commander Seligman had telephoned to ask that they expedite transmission to Washington of Stanley Johnston’s articles about the Coral Sea naval battle. The public relations officers relate they had actually met with both Seligman and Johnston in connection with this.

Document 33

FBI Evidence re USS Barnett, July 1, 1942 1942-07-01 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 7, August 14, 1942 (2 of 2).” Yet another communications officer from the Barnett is interviewed, but his information is exculpatory for Stanley Johnston. Lieutenant C. J. Van Arsdall is certain that Johnston was never in the ship’s radio or code rooms, and that the reporter was not present when he discussed the Nimitz dispatch (Document 3) with the ship’s captain.

Document 34

Memorandum, Navy Secretary Frank Knox-Attorney General Francis Biddle, June 26, 1942 1942-06-26 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 7: August 14, 1942.” After meeting personally on the Johnston case with Attorney General Francis Biddle, the navy secretary returns to his office to discover that it is a fact that the intelligence units of both the Navy and Army had been asked to vet Stanley Johnston, including a name check with the FBI, and that no one had reported any derogatory information, including the suspicions of British intelligence (Document 11). Johnston had not been asked at Pearl Harbor to sign a formal commitment to have his writings reviewed because the directive ordering that had yet to arrive in Hawaii when the reporter passed through. The best Secretary Knox could offer the Attorney General was the oral representations attributed to Captain Frederick C. Sherman of the Lexington.

Document 35

Memorandum for the Record, William D. Mitchell (DOJ), “TRIBUNE Case,” July 15, 1942 1942-07-15 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 6, July 1-August 13, 1942.” Attorney General Biddle’s doubts regarding the Johnston affair were further accentuated by a case summary William J. Mitchell prepared in mid-July. Mitchell noted “serious doubts as to the prospects of conviction” due to “defects in the statute.” The Espionage Act punished disclosures of “written instruments.” Mitchell thought he had a clear case up to the point where the reporter gave his information to his editor, but he had an expectation the editor would submit the material to censorship, while the editor, Loy Maloney, had no knowledge the information about the Japanese warship derived from a written instrument. Without that, Prosecutor Mitchell felt a case against the Tribune editor would also fail.

Document 36

William D. Mitchell, Report on the CHICAGO TRIBUNE Case, July 14, 1942 1942-07-14 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 6, July 1-August 13, 1942.” Prosecutor Mitchell also prepared a more extensive report on the case for both Attorney General Biddle and Secretary Knox. The memorandum analyzed possible prosecutions against the reporter, Stanley Johnston, and against the editor and Tribune Corporation, owner of the Chicago Tribune. The Espionage Act case against the reporter, Mitchell reasoned, failed because of the document issue, the difficulty of proving the note Johnston copied was “secret,” and the government’s inability to show him making a willful revelation of the information with the intent to damage the United States. The document issue also worked to upend a case against editor Loy Maloney because the government could not show he knew the information the Tribune published came from a secret government document. While Mitchell reasoned the evidence justified a conclusion that Johnston and Maloney were lying, criminal prosecution would be a mistake for a number of reasons. These started from the problems in obtaining convictions, but included the poor “atmosphere” surrounding government censors, the distraction for senior naval officers of being required to testify, the fact the trial would expose codebreaking aimed at the Japanese, the additional attention which might clue the Japanese to the codebreaking if they were not already aware of it, the danger of contingent revelations about American codes, and the possibility a jury would decide that lax Navy handling of radio messages was as much to blame as anything the Chicago Tribune was accused of.

Document 37

Memorandum, Assistant Attorney General Wendell Berge to Attorney General Francis Biddle, July 27, 1942 1942-07-27 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 6, July 1-August 13, 1942.” Assistant Attorney General Wendell Berge made the formal recommendation that Attorney General Biddle drop the idea of a prosecution. To Prosecutor Mitchell’s reasons – with which he agreed – Berge added that the “legal grounds for prosecution are too tenuous and the chances of public misunderstanding too great” to sustain an indictment.

Document 38

Summary Grand Jury Testimony, Commander Morton T. Seligman, August 13, 1942 1942-08-13 Source: NARA, RG-30, Case File 146-7-23-25, box 2, file: “Enclosure to Serial 2, Abstract of Grand Jury Testimony.” In his grand jury testimony, condensed here, Commander Morton Seligman went so far as to deny any specific knowledge of the Nimitz dispatch (Document 3), or of conversations in quarters about it. But Seligman left himself wiggle room by saying that it “may” have been there, that there were discussions all the time, “and, naturally, if you are out there you are going to discuss the war.” Prosecutor Mitchell, conducting the grand jury, had a copy of the message that bore Seligman’s initials, proving he had, in fact, seen the dispatch aboard Barnett. Seligman acknowledged then that he might have made notes about what was in the message. He also affirmed that, ashore in San Diego, he helped put Stanley Johnston in touch with Eleventh Naval District officers who sent his Coral Sea articles to Washington for censorship clearance.

Document 39

Grand Jury Testimony of Stanley Johnston, August 18, 1942 1942-08-18 Source: NARA, RG-60, Case File 146-7-23-25, box 2, file: “Enclosure to Serial 8, Grand Jury Testimony, v. 5.” Stanley Johnston here acknowledges a responsibility to submit his writings for clearance and says he had certainly done so with the Coral Sea articles and thought he had done the same with the Midway article. Johnston also insists he had nothing to do with the

attribution to “naval intelligence” of the foreknowledge claimed in the article. The material on Japanese warships, the journalist reiterates, came from a note he saw on a table aboard the Barnett. He attested to an expertise in Japanese warships independent of any Navy message, speaking of identifying the carrier Hiryu in the Pearl Harbor attack, and of not being surprised that battleship Kirishima might be on the way to Midway Island. Johnston, concerned the Chicago Tribune might believe accounts that pictured a Japanese diversionary raid on the Aleutian Islands as the main action, described his conversations with editor Loy Maloney. Johnston represented Midway as a tremendous victory, and had his data on the Japanese fleet to prove it. After some discussion of the drafting of the Tribune’s June 7 article, and his subsequent trip to Washington to see the U.S. Navy brass, Johnston finished his statement and was excused. No questions were asked.

Document 40

FBI Report on Japanese Internees in the United States, July 9, 1942 1942-07-09 Source: NARA, RG-60, Case File 146-7-23-25, box 1, file: “Serial 6, July 1 - August 13, 1942.” One of the main concerns of U.S. officials throughout the Chicago Tribune case was the possibility that drawing attention to American knowledge of Japanese actions would lead the Japanese to realize their codes had been penetrated. Among the major possibilities for this would have been through Japanese officials or diplomats, assigned in the United States, acquiring that knowledge, either from the original Midway article or from any of the press coverage of the ensuing inquiries. The FBI assembled a meticulous record, presented here, of the treatment of the Japanese prior to their departure for a diplomatic exchange, via the cruise ship S.S. Gripsholm on June 18, 1942. The largest group of Japanese, including Washington embassy staff, had been located at White Sulphur Springs, West Virginia, since April 1942, and had had access only to the New York Times, which had not printed any of the Tribune reports. The Japanese consulate staff from Hawaii had been held at Dragoon, Arizona, where they were denied access to any media whatever. Another group, mainly Japanese officials from South America, had been at Asheville, North Carolina, and also had had only the New York Times. But there was a miscellaneous collection of 500 or so Japanese who had been at liberty, held in Army camps, internment camps (the FBI report freely used the term “concentration camps”), on Ellis Island or elsewhere, until starting to gather in New York on June 7, 1942. The FBI admitted that Japanese who had been at large could have had access to any media they wanted. Categories: Intelligence and Espionage Secrecy and FOIA

Regions: Pacific and ANZUS United States and Canada Project: Intelligence

Journalist Stanley Johnston in happier days, at the head of the Robert McCormick Institute. (Credit: Robert McCormick Institute)

Lieutenant Commander Morton Seligman with his wife. The Navy Cross, just pinned on him for heroism at the Battle of the Coral Sea, is plainly visible on his tunic. (Credit: National Archives and Records Administration)

Chicago Tribune Building on Michigan Avenue NOTES

[1] “JAP FLEET . . .” and “NAVY HAD WORD OF JAP PLAN” both from Chicago Tribune, June 7, 1942, p. 1 & 8. [2] For much more on Station Hypo, the Office of Naval Intelligence, and even Japanese intelligence, see John Prados, Combined Fleet Decoded: The Secret History of American Intelligence and the Japanese Navy in World War II. New York: Random House, 1995, passim. This knowledge is reflected in the statements of Document 1. [3] The record of what happened at this meeting is hearsay, recorded by Chicago Tribune staff members based on conversations with Justice Department officials. See Elliot Carlson, Stanley Johnston’s Blunder. Annapolis: Naval Institute Press, 2017, p. 155. [status draft]

[nogallery]

[geotag on]

[publicize off|twitter|facebook]

[category araştırma]

[tags RESEARCH DOCUMENT, Secrecy, Leaks, U.S., Government, The Chicago

Tribune]