James C. Goodale

On April 17^th, The New York Times Magazine published my letter to the editor commenting on Bill Keller’s interpretation of the grand jury investigation into Chicago Tribune for allegedly violating the Espionage Act in 1942.  That letter reads as follows:

“Bill Keller, in his column ‘Secrecy in Shreds,’ writes that The Chicago Tribune published the fact that the United States had broken the Japanese code and that The Tribune could be successfully prosecuted for such publication. I beg to differ. The Tribune never mentioned that its story was based on broken codes. In order for a successful prosecution, the government would have had to prove that the story was published with guilty knowledge. I do not believe the Tribune had such knowledge.

“In my view, no ordinary person would have deduced from what was in the article that it relied on information from broken codes. Only the government could clearly come to that conclusion. As is well known, the government attempted to prosecute The Chicago Tribune for this publication, but the grand jury it convened would not indict the newspaper.”

This letter condensed, for space purposes, an earlier version which I have set out below to explain more fully what The Chicago Tribune did.  It is my view that the prosecution of The Chicago Tribune would have failed and any prosecution of WikiLeaks will fail for the same reason: the Espionage Act does not cover such publication.  Here are my views:-

The article in question was headlined, “Navy Had Word of Jap Plan to Strike at Sea.”  It said that “The strength of Japanese forces . . . was well known to American naval circles several days before the battle began, reliable sources in the naval intelligence disclosed here tonight.”  The article described the Japanese forces in particular detail, i.e., the number of carriers, battleships, etc.  It also described the Japanese plan of attack.  But nowhere in the one column headline or in the article itself is there any reference to codes or whether they had been broken.

The Roosevelt Administration was furious at The Chicago Tribune because it asserted that when the Japanese read the article they would conclude their code had been broken.  Accordingly, the administration convened a grand jury to indict The Chicago Tribune.

The grand jury never issued an indictment.  Stanley Johnston, the Tribune correspondent who wrote the article, was in the commander’s quarters of a vessel near the battle where he saw a piece of paper which set out the facts he reported in his story.  He knew the document he was looking at was classified but did not know the document was based on broken Japanese codes.  When he wrote the article, he compared the order of battle set out in the classified paper with a description of the Japanese fleet which appeared in the intelligence magazine “Jane’s Fighting Ships.”  Walter Winchell, in his nationally syndicated column, falsely accused the Tribune of knowingly basing a story on a decoded message. 

While the government failed to indict The Chicago Tribune, it is highly doubtful whether its prosecution would have succeeded under the Espionage Act.  That Act, which was used to enjoin The New York Times in the Pentagon Papers case, requires the alleged violators of the Act have guilty knowledge of what they are doing.  The publication by the Tribune was made without any knowledge whatsoever that it was providing evidence  the Japanese code had been broken.  In addition, the Espionage Act by its very terms only applies to “communication” and not publication, and therefore would not apply to The Chicago Tribune any more than it would cover prosecution of Julian Assange or The New York Times for publishing WikiLeaks.