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

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.

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.

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.

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.

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.)

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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.”

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.

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 Lexington officers discuss it. Seligman insisted he had never shown it to Johnston or permitted any copy of the dispatch to be made.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.