FAN 63.1 (First Amendment News) — Judge grants petition to unseal grand jury transcripts from 1942 Espionage Act investigation of Chicago Tribune

Chief Judge Ruben Castillo

Chief Judge Ruben Castillo

Yesterday Chief Judge Ruben Castillo granted a petition to unseal the grand jury transcripts from the 1942 Espionage Act investigation of the Chicago Tribune. The petition titled In re Petition of Elliot Carlson, et al was filed on November 18, 2014 in the United States District Court for the Northern District of Illinois. In addition to the lead petitioner, the other parties in the case 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 controversy traces back to a June 7, 1942 front-page story the Chicago Tribune ran by its war correspondent Stanley Johnston. The piece was titled “Navy Had Word of Jap Plan to Strike at Sea.” Citing “reliable sources in naval intelligence,” the Johnston story reported that the U.S. Navy had detailed information concerning the Japanese military’s plan to attack U.S. forces at Midway several days in advance of that battle.

Screen Shot 2015-06-11 at 10.54.59 AMThe government believed that the story was based on a classified Navy dispatch. More importantly, it believed that the story revealed a closely-held secret, namely, that the Navy had cracked the radio code used by the Japanese navy to encrypt communications. Outraged by the apparent “leak,” officials in the FDR Administration pressed for the prosecution of the reporter and his paper. Or as the editorial board of the Chicago Tribune put it in 2014: “The response was ferocious. President Franklin D. Roosevelt’s instinct was to have Marines occupy Tribune Tower. Navy Secretary Frank Knox insisted that U.S. Attorney General Francis Biddle prosecute Tribune journalists for hurting national security.”

Despite the long-standing tradition that grand jury proceedings are to be kept secret, Judge Castillo ruled that “the rule of grand jury secrecy is not absolute.” Thus, Federal Rule of Criminal Procedure 6(e) addresses several situations in which the Court can order the release of grand jury transcripts. The controversy in the case arose over the question of whether the Court had authority to order release of grand jury materials for reasons other than those enumerated in Rule 6(e).

Against that backdrop Judge Castillo declared:

nothing in the Federal Rules expressly forbids a district court from releasing grand jury materials based on their historical significance; the Rules simply do not expressly authorize it. This distinction is critical. As the Seventh Circuit has recognized, the “mere absence of language in the federal rules specifically authorizing or describing a particularjudicial procedure should not, and does not, give rise to a negative implication of prohibition.” See G Heilman Brewing Co. v. Joseph Oat Corp., 871 F.2d 648, 652 (7th Cir. 1989) (citing Link v. Wabash R.R.,370 U.S. 626, 629-30 (1989).) The Federal Rules specifically provide that, in the absence of express authority to the contrary, the Court can proceed “in any manner consistent with federal law, these Rules, and the local rules of the district.” Fed. R. Crim. P. 57(b).

 To buttress that argument, he added:

As drafted, Rule 6(e) does not contain the type of negative language — such as “only” or “limited to” — that one would expect to find if the list were intended to be exclusive.  See Fed R. Crim. P. 6 (eX3XE). Nor are the exceptions listed in Rule 6(e) part of an “associated group or series.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003). Rather, they describe distinct scenarios in which different individuals can seek disclosure of grand jury materials. See Fed. R. Crim. P. 6(eX3XEXi)-(v). Under these circumstances, there is little basis to conclude that Congress intended Rule 6(e)(3) to preclude disclosure of grand jury materials in all situations other than those listed. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73,81 (2002) (“Just as statutory language suggesting exclusiveness is missing, so is that essential extra-statutory ingredient of an expression-exclusion demonstration, the series of terms from which an omission bespeaks a negative implication.”).

. . . The Court also considers that the Federal Advisory Committee on the Criminal Rules, a rulemaking body under the jurisdiction of the Judicial Conference Committee on Rules of Practice and Procedure, has interpreted Rule 6(e) in a manner supporting the view that courts have inherent authority to release grand jury materials for reasons outside of those enumerated.

Judge Castillo then considered the nine factors set out in In re Craig, 131 F.3d 99  (2d Cir.1997), and concluded that release of the grand jury transcripts was warranted.  Thus, he granted the petition to “release . . . the grand jury transcripts from the 1942 investigation of the Chicago Tribune.”

Reporters Committee press June 11, 2015 release here

ht: Katie Townsend

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