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Gabriel Schoenfeld
Leakers and the Law
A World War II episode offers perspective on recent exposures of government secrets.
18 October 2013

Now that Bradley Manning has been convicted of violating the Espionage Act, the Justice Department may train its sights on Julian Assange, proprietor of WikiLeaks, the website that published Manning’s vast trove of purloined U.S. government documents. A grand jury has been examining whether Assange conspired with Manning to violate U.S. law.

Any prosecution of Assange or WikiLeaks would be unprecedented. No journalist or news organization has ever been prosecuted in an American court for publishing government secrets. Under any plausible reading of the First Amendment, WikiLeaks is a news organization and so benefits from the protections that our Constitution affords the press.

While relevant precedents here are scarce, a newly declassified government document offers a glimpse at how the Justice Department once thought about prosecuting a journalist who printed secret information during World War II. Stanley Johnston, a Chicago Tribune reporter, was embedded with the American fleet as it took part in the battle of Midway, the most decisive naval encounter of the Pacific War. Witnessing the battle firsthand from the deck of the USS Barnett, Johnston obtained classified operational documents from a friendly officer.

The story that Johnston filed with his editors was published on June 7, 1942, under the headline NAVY HAD WORD OF JAP PLAN TO STRIKE AT SEA, KNEW DUTCH HARBOR WAS FEINT, and it gave a full picture of the disposition of the Japanese armada, complete with names, tonnages, and the armaments of all the enemy vessels that engaged in the battle. It also included the comment that “the strength of the Japanese forces which the American Navy is battling somewhere west of Midway Island . . . was well known in American naval circles before the battle began.” The implication was obvious: the United States military was reading encrypted Japanese communications.

For the Americans, this was a disastrous breach of security. If the ability to read Japanese naval traffic had been lost, tens of thousands of American soldiers and sailors would have perished. That the story appeared in the Chicago Tribune—owned and published by the isolationist, Roosevelt–hating Colonel Robert R. McCormick—added to the offense, giving it a political character.

Attorney General Francis Biddle asked the Office of Legal Counsel (OLC) what legal action could be taken against the reporter and the newspaper. In short order, Biddle received a memorandum from the head of the OLC, the assistant solicitor general Oscar Cox, titled “Criminal Liability for Newspaper Publication of Naval Secrets.” After seven decades, that document has now been made public. Referring to Johnston as “A” and the Chicago Tribune as “B,” the memo asked and attempted to answer four questions:

Has A violated the Espionage Act of 1917?

Has the managing editor of B newspaper violated the Act?

Has the corporation owning the B newspaper violated the Act?

Has the person described as the “publisher” of the B newspaper violated the Act, assuming that he owns a large fraction of the corporation’s stock and controls its general policies?

Determining whether Johnston had “communicated” the government secret “to persons not entitled to receive it,” an element of the crime that had to be proved if a conviction was to follow, was easy enough. The Cox memo concluded that “it seems clear that the general public was ‘not entitled to receive’ the facts disclosed.”

Johnston’s intent was more difficult to discern. The statute demanded that the behavior in question had to be “willful” in order to be criminal. Cox noted that the reporter’s conduct was “reckless and negligent, rather than specifically intended to do harm.” But the absence of such specific intent did not mean that Johnston was off the hook. Even without specific intent, there could be willfulness if the violation was blatant enough. And in this instance, “the negligence and recklessness were of such magnitude as to be fairly characterized as criminal and evil.”

In a judgment that anticipated the worldwide reach of WikiLeaks, the memo continued that “the enormous circulation of the newspapers in question made it practically certain that the story would reach the enemy.” All things considered, concluded Cox, “the reporter’s conduct in taking and copying a dispatch of immense importance—as this one seems obviously to have been—is characterized by real turpitude and disregard of his obligations as a citizen. . . . He thoroughly deserves punishment.”

What about Johnston’s editors and the owner and publisher of the Chicago Tribune? Did they also deserve punishment? Here the memo offered a chain of culpability. Thus, the editor could be found guilty based upon the same considerations that applied to a prosecution of the reporter. And, continuing up the chain, “the corporation’s liability would seem to depend on the liability of the managing editor: if he can be convicted, so also can the company.”

But Johnston, McCormick, and the Chicago Tribune company were never punished or even put on trial. Though prosecutors impaneled a grand jury to hear evidence, the Justice Department decided against proceeding, once it became apparent that the Japanese hadn’t changed their codes in response to the breach. To avoid calling further attention to the revelation, prosecutors disbanded the grand jury and issued a statement declaring that “no violation of the law was disclosed.” The episode was over.

The Cox memorandum has no legal standing or precedential value, but it shows that in the authoritative judgment of the executive branch, journalists can, under some circumstances, be prosecuted for publishing government secrets. The First Amendment guarantee of freedom of the press, which goes unmentioned in Cox’s analysis, does not grant an absolute license to publish government secrets.

But the Cox memorandum hardly means that the publication of every government secret merits prosecution. The Johnston case occurred while the country was waging a hot war, with countless American lives on the line. Very few leaks could be as damaging as the story published by the Chicago Tribune. Indeed, it is impossible to identify any material that WikiLeaks published that caused or could have caused that level of harm. A prosecution of WikiLeaks merely for publishing Manning’s documents would seem unwise.

Edward Snowden’s revelations may be a different matter. American embassies across the Arab world were shuttered this summer in response to “chatter” indicating that a major al-Qaida attack might be imminent. The highly secret surveillance programs that Snowden outlined to the activist-writer Glenn Greenwald are U.S. intelligence agencies’ main source of warnings about such dangers. Greenwald published the information that he gained from Snowden in a British newspaper, the Guardian, making it “practically certain,” in the terms of the Cox memo, “that the story would reach the enemy.”

Given that the terrorist danger has not abated, and that the United States has, to some degree, been blinded by Snowden’s revelations, the damage here is akin to the damage that the Chicago Tribune’s Johnston could have caused. The publication of Snowden’s purloined documents may cost an untold number of lives.

It seems highly unlikely that Obama would prosecute Greenwald; but five years ago, it seemed utterly implausible that his administration would initiate the harshest crackdown on leakers since the Nixon era. Yet that is exactly what has happened. If a major terrorist attack were to occur, that would no doubt influence the Justice Department’s calculation.

Greenwald, an expatriate who lives in Brazil says that he acted to expose “a massive apparatus within the United States government that . . . has only one goal. . . . And that is to destroy privacy and anonymity not just in the United States but around the world.” Prosecutors, on the other hand, might contend, as Oscar Cox did about Stanley Johnston, that he acted from “turpitude and disregard of his obligations as a citizen.” If an indictment of Greenwald were forthcoming, the nature of his intent would be a question that a jury would ultimately have to decide.

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