WWII Investigation Records Could Go Public

CHICAGO (CN) - Loose lips may sink ships, but what happens when "the ships sailed some 70 years before the tongues wag?"

The Seventh Circuit ruled 2-1 in favor of loose lips Thursday, with a call to unseal grand-jury investigation records from World War II when the federal government considered charging the Chicago Tribune with espionage crimes after it ran a story about the Battle of Midway that relied on classified military communications.

In 1942, on the heels of its surprise attack on Pearl Harbor, Japan was planning to take out the United States' Naval Forces at Midway. Japan's scheme was to create a decoy attack on the Aleutian Islands in order to trick the United States into sending their ships out of safe harbor, while simultaneously attacking Midway.

Fortunately for the Allied Forces, an American codebreaker had cracked Japan's code about two years earlier, allowing the Americans to thwart Japan's plan, turning the tide in World War II's Pacific Theater.

On the day that the Battle for Midway ended — June 7, 1942 — the Chicago Tribune ran a front page story explaining that the U.S. forces had capitalized on decoded messages from Japan to give them the advantage in the battle.

The story was written by Stanley Johnston, who was stationed on a Navy ship when he came across a classified communiqué intended for the ship's commander, warning about the impending attack on Midway.

In the wake of the article, which revealed that the United States had cracked Japan's code, military brass and President Franklin Roosevelt called for a criminal investigation into possible espionage charges.

Ultimately, the U.S. Department of Justice's grand jury decided not to proceed with charges against the Chicago Tribune and Johnston.

Back in the present, historian Elliot Carlson has been working on a book about the Chicago Tribune's coverage of Midway. Because the records to the grand-jury investigation remain sealed, Carlson's book remains unfinished.

Carlson petitioned the Northern Illinois Federal Court, requesting it use its jurisdictional authority over the grand jury to order the records unsealed, but the federal government argued that Federal Rule of Criminal Procedure 6(e) does not allow for the release of grand jury documents for their "historical value."

Carlson argued that an earlier Second Circuit decision allows for record releases under Rule 6(e) in circumstances that specifically stipulated in the regulation.

A federal judge agreed, and so did the Seventh Circuit on Thursday.

"The district court engaged in a thoughtful and comprehensive analysis of the pros and cons of disclosure before granting Carlson's request, and we are content to let its analysis stand," Chief Judge Diane Wood wrote a three-judge panel.

Judge Diane Sykes dissented, arguing that Rule 6(e) strictly limits the legitimate reasons for unsealing grand jury documents and historic importance does not apply.

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