Espionage Probe of Tribune Unsealed – From Battle of Midway

CHICAGO (CN) - A federal judge unsealed transcripts from the 1942 grand jury investigation of the Chicago Tribune under the Espionage Act for publishing a story that U.S. codebreakers had decrypted the Japanese Navy's code before fighting the Battle of Midway.

The Tribune's June 7, 1942 front-page story came on the final day of the four-day battle, which irreparably damaged the Japanese fleet, destroying four aircraft carriers, a cruiser and 248 airplanes. Military historian John Keegan called it "the most stunning and decisive blow in the history of naval warfare."

Coming just 6 months after Pearl Harbor, it revitalized U.S. morale.

The Tribune story was accurate. Navy analysts had partially broken the Japanese Navy's code, turning a Japanese ambush into an ambush by the United States, which knew the number and disposition of Japanese forces before they attacked Midway Atoll.

The story headlined "Navy Had Word of Jap Plan to Strike At Sea" was republished in The New York Times and Washington Times-Herald.

Tribune reporter Stanley Johnston reported the story from the USS Barnett, and cited "reliable sources in naval intelligence."

President Franklin Roosevelt and the U.S. military were furious, and called for a federal investigation of the Tribune under the Espionage Act.

In August 1942, a grand jury heard testimony from Admiral Frederick Sherman, Commander Morton Seligman, Lt. Commander Edward O'Donnell, Lt. Commander Edward Elridge, and four other officers.

Tribune staff testified, including Johnston and managing editor Loy Maloney, Ralph Sharp of the New York Daily News, and Frank Waldrop of the Washington Times-Herald.

The grand jury declined to issue indictments, and the Tribune proclaimed it a victory for press freedom.

The transcripts of the investigation have been sealed - until now.

U.S. District Chief Judge Rubén Castillo on June 10 granted historian Elliot Carlson's petition to unseal the transcripts.

Carlson is writing a book about the espionage investigation, for the Naval Institute Press.

"The Tribune investigation marks the first and only time in U.S. history that the federal government attempted to prosecute a major newspaper for an alleged violation of the Espionage Act," Carlson told the court.

Joining Carlson as plaintiffs were the Reporters Committee for Freedom of the Press, the American Historical Association, the National Security Archive, the Naval Historical Foundation, the Naval Institute Press, the Organization of American Historians, and the Society for Military History.

The government fought the request, claiming that "historical significance" is not a sufficient reason to disclose grand jury transcripts.

Judge Castillo disagreed: "Petitioners seek the transcripts for scholarly purposes and to create a more complete public record of the Tribune investigation, which are worthy goals. The Tribune investigation not only received media coverage at the time it occurred, but has continued to receive media attention in recent years."

Castillo added that the government "has not identified any specific reason that releasing the grand jury transcripts will threaten national security or otherwise cause harm."

He said the issues involved in the Tribune investigation remain vital today.

"Even now, there is a robust public debate surrounding the government's prosecution of members of the press for violations of the Espionage Act," Castillo wrote, citing President Obama's use of the Espionage Act to prosecute journalists.

The age of the case also weighs in favor of disclosure.

"The Tribune investigation took place more than 70 years ago, and other courts have released grand jury transcripts based on historical significance when less time has passed," Castillo said.

Most of the parties involved are dead, and no family member has come forward to object to the disclosure.

"Disclosing the transcripts will not only result in a more complete public record of this historic event, but will 'in the long run build confidence in our government by affirming that it is open, in all respects, to scrutiny by the people,'" he concluded, quoting the American Historical Association's brief in support of Carlson.

The United States lost the aircraft carrier Yorktown, a destroyer and about 150 aircraft in the Battle of Midway, but only 307 men, compared with more than 3,000 Japanese. The United States' greater industrial capacity allowed the nation to make up for the losses far better than the Japanese. By the time Japan had built three new carriers, the United States had produced more than two dozen.

The Japanese government too tried to keep the battle secret, calling its survivors "secret patients" when they were hospitalized in Japan, and quarantining them from others.

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