DECLASSHHED befirz sf Q mwal June 18 1942 F33 THE ATTORNEY GENERKL memorandum of William D Mitchell on Newspaper Article of June 7 about Naval Engagement near Midway I Construction of Section 31 and Act of June 15 1917 Chapter 30 Section 1 40 Stat 217 as amended by the Act of March 28 1940 Chapter 72 Section 1 54 Stat 79 The amendment of 1940 made no change in subdivision or of Section 1 except to increase the maximum term of imprison ment from two years to ten years leaving the maximum fine at $10 000 Subdivision and as so amended read a a eor Whoever _lawfully or unlawfully having possession of access to control over or being intrusted with any document writing code book signal book sketch photograph photographic negative blue print plan map model instrument appliance or note relating to the national defense willfully ecumenicates or transmits or attempts to communicate or trans the same to any person not entitled to receive it or mil fully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it or whoever being intrusted with or having lawful possession or control of any document writing code book signal book sketch photograph photographic negative blue print plan map model note or information relating to the national defense through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust or to be lost stolen abstracted or destroyed shall be as 91 Pamela or Jug-neg AUG 11 1950 m OF him Email DECLASSHHED 2e 6 or 35 2 of not more than $10 000 or by imprisonment for net more than two years or both Sections and of Section 1 all involve proof of intent or reason tobelieve that the information is to be used to the injury of the United States or to the advantag we of any foreign nation To assume the burden of establishing that intent would be unwise The charge that the Tribune published the article with the intent to injure the United States or lend aid and comfort to its enemies would hardly be believed'hy a jury in this case Indeed the evidence before us indicates that the story was hurriedly pub lished June 7 immediately following Nimitz's reports on the Midway battle as a timely and sensational news article in the nature of a partial scoop because the story'contained some facts not pre- viously published Indeed I think a jury'would conclude that the Tribune did'not realize that the publication might injure the 'United States or aid the enemy The only new or objectionable matter in the article not previously published by the NaVy was the precise description of-the Japanese fleet The fact that an engage- ment had already taken place had been published by Nimitz He had already stated publicly that he had advance information of the pro posed attack on Midway and that his forces had been ready to meet it Just Why the statement in the article of June 7 about the detailed list of Japanese vessels was harmful to the United States was not obvious to the Tribune Indeed the communications from the Tribune since June 7 indicate its officials do not yet realize the reason why it was harmful The harm lay in the fact that it dis- closed that prior to the attack the United States had accurate information as to the number and character of the Japanese vessels and that disclosure in turn would suggest to the Japanese that the United States prdbably got those details by breaking the Japanese code and decoding intercepted Japanese radiograms Naval Intelli gence afficers would quickly see all the implications but lay men would not Indeed it is because these implied disclosures are not apparent that I have insisted a jury might not see them and that at a trial they should be emphasized at the cost of further advertising our success in breaking the Japanese code I therefore conclude that any charge which involves proof of intent to harm the United States or-help the enemy or reason to believe that would result should be omitted There has been some question in my mind Whether there should be a count based on subsection as well as one on I am afraid of the word delivereddescribing a publication in a newspaper The author was evi- dently thinking of documents maps etc It seems clear that it would be easier to bring this case under than under and that subsection should be used It DECLASSIFIED Authority ujlm 7 I $4 7' involves no element of-intent to hurt the United states or help the enemy and under it it is immaterial whether the document writing or note has been lawfully or unlawfully obtained It uses the word communicate which in the case of a document 'Writing or note includes communicating the contents not necessarily delivering the document itself In the Tribune case it is already clear that Johnston had access to a writing document or note relating to national defense His published story is inherent proof that he must have had access to the Nimitz message of May 31 or access to a copy of it and oppor tunity to make a copy of What he had access to Any other assumption would require a feat of memory impossible to all but prodigies The order in Which the ships were listed both in the message and the article the duplication of errors etc are enough Furthermore Jehnston has admitted making a copy of a papex'he found on his desk and that paper is audacument or note defined in subsection I also think no case has yet been developed which will Satisfactorily support a conspiracy charge As to the previous publications relating to the expedition to Ireland to occupation of the Azores or to the Army and Navy estimates of overall production requirements so far as I have gone into the case I fail to see how it can be successfully claimed there has existed a continuing conspiracy to obtain national defense information and disclose it to persons unauthorized to receive it Those previous publications although they show a reckless disregard of the nation's interest and may each have been a violation of law fall_short of shoring a continuity of purpose As well charge burglaw pith conspiracy to burglazizerby proof that they have com- mitted at_intervals a succession of burglaries Neither do I see a good basis en the facts for charging a conspiracy between Johnston and his managing editor or the Tribune Corporation Jehnston has said that he told his managing editor Maloney at a June 7 when handing him his article that he aesumed the article would have to be cleared by the Navy A jury would not convict Johnston of a conspiracy to unlawfully publish if he entrusted his article to the editor of his own paper at relying on the editor to obtain the necessary clearance especially if Johnston mentioned to the editor his assumption that Navy clear ance would have to be obtained The fact that the editor believed mistakenly that the Code of dartime Practices was all he need regard and believed that the Code did not ban informa- tion about enemy ships unless in or near United states waters is something Johnston would not be liable for 0f course if Johnston obtained the information unlawfully by purloining it without the knowledge or consent of the officers DECLASSIFIED Authorityuthe Barnett of which we yet have no satisfactory prOOf and if 3 h he informed Maloney June 7 that he had so obtained the data there might be a conspiracy case As to conspiracy between the Tribune and other papers to which the Tribune sent the article therec is obviously no basis in the existing proof for such a charge The rother papers to whom the article was wired could not be convicted of conspiracy in the absence of proof that they knew the publication was unauthorized The conclusion Should be in the absence of further develop- ments that a prosecution if instituted Should be based on sub section If we cannot convict under that we certainly cannot convict under any other sections II was the Publication Unauthorized This is the vital point in the case and so far is left in unsatisfactory'shape If it can be established that the contents of the Nimitz message was not given to Johnston by any one on the Barnett but that he purloined it by secretly copying a memorandum carelessly left exposed by some officer and that he never told any one on the ship he had done so I think a court would hold that the publication was not made to any one authorized to receive it regardless of whether or not it contained information not banned by the Code of wartime Practices and even though he had not been instructed to submit his articles for censorship 'Any implied authority to publish would cover only what he legitimately saw or learned while on board certainly not the contents of an important secret message not shown him and which he obtained secrethy and as the result of carelessness on the part of some officer in leaving it exposed Johnston s last statement as to hOW'he get the information by dis- covering and copying a paper he found might'well convict him The hitch there may be that although he stated it he still expected that the article with the information in it would before publica- tion be censored by the Navy and that he did not realize when he took the copy that it was anything more confidential than what he had already heard His own statements show he did not realize the importance of the information until June 6 after the Midway battle There isanso the legal question whether his statement made after the event is admissible against his employer or Maloney as made in the course of his employment Maloney's statement submitted by Authority lienning June 12 says Johnston'was sent to'Washington by the Tribune w with orders to make a full statement This may make him the agent aha of the Tribune to make it and bind the Tribune although probably SNQERMaloney Nevertheless it-is very unsafe to proceed to trial in 'reliance on the theory that he purloined the information since we have no evidence as to how he got it except Johnston's own admissions which he may qualify It therefore is important that we sh ow some restraint on his publications e was granted leave to be on the United States vessels as a neWSpaper correspondent for the sole object express and implied of'Writing stories for publication That being so if On his return to the United States he is allowed to go his way and has not been instructed to submit his stories for the necessary implication is that he could publish ahyh thing he honestly saw or learned I think the burden is on the' prosecution to show the publication was unauthorised The Espionage Act only forbids a communication to one not authorized to receive it It does not define who are authorized That is left to the regulations or requirements of the Government departments involved Two sources of restraint have been suggested One is the Code of wartime Practices for the press That code banned publications about enemy ships in or near American waters On June 7 the Japanese fleet or its remnants was hundreds of miles from any American waters Besides the censor has already con ceded to the Tribune that the June 7 article did not violate the code The other possible source of restraint is in conditions imposed by the Navy in ccnSideration of his being allowed on Govern ment vessels Clearly the Navy had a right to impose special restrictions for censorship on correspondents granted the privilege of being on Government ships regardless of anything in the code The facts as to what the Navy did or did not do in Johnston s case so far as we now know them are set forth in the attadhed memorandum to Mr J Edgar Hoover and will not be detailed here In a nut Shell it appears the Navy in Johnston's case did not require him to sign the usual agreement to submit his art- icles to Navy censorship Whether this was intentional or an over- sight does not appear If intentional it does not yetAappear whether it was the purpose to turn him loose Without censorship or whether he was given to understand he would have to submit his artidles to the Navy and the failure to exact the usual'written agreement was a gesture of confidence in his reliability DECLASSIFIED Authoriwem 0n the other hand Johnston in his statements prior to June 9 has repeatedly Said he'was subjectto Navy censorship and every article he has written except the one of June 7 about his exper iences at sea has prior to publication been submitted to the Navy either direct or through the Sensors office Finally on June 9 we find he claimed_to the censor Mr Howard that he had never signed an agreement for censorship and was Wholly free from any such restrictions This is a beautiful mess _ The solution will have to await completion of the inquiry I have suggested to Mr Hoover I should add that there is no general regulation of the Navy restricting press men on Navy vessels The Navy has always relied on the agreement system Jurisdiction an the question'whether prosecution of the Tribune if begun should be inStituted there or be maintained in the District of Columbia we have not yet gotten to the bottom of the problem So far as the memorandums have gone the question is in my mind yet in deubt There does not appear to be authority directly in point CaseS'Where a single crime has been committed by a series ofsacts some in one state and some in another hardly fit this case Under the Espionage Act 'was there a separate and inde pendent offense committed by the Tribune in the case of each indivi dual who got a cepy of the June 7 issue Or'was there a single offense in disclosing the facts to the public en masse Can we drag the Tribune to New hexico or Maine for trial if it delivered one copy of this issue to a person in each of those states I do not yet know the answer to the law point Nevertheless if Johnston personally is to be prosecuted his offense was committed in Chicago and probably nowhere else Finalxy I am in principle opposed to dragging peeple away from their homes and plaCeS Of business if they can be prosecuted there to answer to a charge in a distant state There was too much of that when I was in the Department though I tried to prevent it when it came to my attention I think the practice has been growing instead of decreasing Peeple resent DECLASSIFIED AuthorityMIiD 26 I i 74 2 it and I think justly so It often imposes a great hardship on- the defendants but mainly its obvious purpose is to get the defendant among strangers or to get him before a judge the Govern ment thinks it can count on I also think that when it is decided where an indictment is to be applied for the only grand jury inquiry Should be there 'If two grand juries are dealt with it is going to be a detriment to the Navy to have a number of important officers attending two grand jury hearings when their time is needed for the vrar'effort I am inclined to think also that there areasome advantages in using a Chicago grand jury If documents are suddenly called for they are there in the Tribune office and there is less time to have them disappear Finally there will have to be considered carefully after the investigation has gone farther whether a presecution should be instituted 'We Should have a reasonably clear prospect of can viction The Government cannot afford to start it and lose 'Many officers needed badly in the war operations will be called from various posts for grand jury and nnch later for trial I hear now that the Japanese have not yet changed their code A trial would certainly putewery one wise to What happened we could not count on winning the case without pointing out to some degree the implications as to the source of Nimitz's information William D Mitchell                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu