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BOB GARFIELD:  Actually, no reporter has ever been prosecuted for publishing leaked information, but Gabriel Schoenfeld, author of Necessary Secrets:  National Security, the Media and the Rule of Law, says there be a legal basis for indicting journalists, one that dates back to WWII.

GABRIEL SCHOENFELD:  The Battle of Midway was the decisive battle of the Pacific war for the United States, and we won that battle in large measure because of a secret weapon. We had broken Japanese codes. Now, after the Battle of Midway, almost immediately afterwards, a Chicago Tribune reporter by the name of Stanley Johnston, who had been embedded in the fleet, published the story essentially reviewing that the United States had broken Japanese codes. This was the most damaging leak in our history, I think. If the Japanese had acted on what the story said, thousands, perhaps tens of thousands, of American serviceman would have died in the years ahead. The war would have been prolonged. It would have changed the course of history radically.

BOB GARFIELD:  Just to be clear, he did not write in an article that the United States had broken the Japanese code. What he wrote after the battle was the position of the Japanese fleet. The reason he knew that was because he had been leaked the information of the fleet’s deployment by an officer on the ship, and the Japanese could have deduced that the US had broken the code. Otherwise, he wouldn't have been able to write what he wrote.

GABRIEL SCHOENFELD:  Yes, that's, that's an accurate rendition of what occurred. The damage was potentially very severe.

BOB GARFIELD:  A grand jury was impaneled to investigate whether this breach of intelligence rose to the level of criminal transgression. Ultimately, the grand jury was disbanded before handing up an indictment.

GABRIEL SCHOENFELD:  Right, the grand jury was disbanded because the government did not want to call attention to a story that they assumed the Japanese had not noticed. And they assumed that in large measure because the Japanese did not change their codes. The story was picked up and used elsewhere, so it was out there. And it sort of beggars the imagination to believe that the Japanese agents in the United States did not notice the story. And the best explanation for the reason why they didn’t change their codes is not that they didn’t see the story, but they just believed so absolutely in the strength of their codes and in the inability of Americans to read Japanese. So they had a kind of hubris that cost them.

BOB GARFIELD:  Even though the case was not pursued, there's still a kernel of precedent in an opinion that was written at the time by the Office of Legal Counsel.

GABRIEL SCHOENFELD:  Well, the Justice Department has just declassified a whole bunch of Office of Legal Counsel memos. This is one of the more fascinating documents in that newly declassified collection because it shows us what the government was thinking about this case. And Attorney General Francis Biddle had asked the solicitor, Assistant Solicitor General, Oscar Cox, whether reporters could be prosecuted under the Espionage Act. And he concluded that the reporter could be prosecuted.

BOB GARFIELD:  One of the difficulties of prosecuting these cases, apart from the basic constitutional ones, is the burden of proof on the part of the government that there was an intention to do harm.

GABRIEL SCHOENFELD:  The intention question is the key here, and the most interesting part of the memo takes up what the reporter’s intention was. It says, on the one hand, his conduct was reckless and negligent, rather than specifically intended to do harm. So, in that sentence, he – he doesn't have intent. But in the next sentence, the memo goes on to say; yet, the negligence and recklessness were of such magnitude as to be fairly characterized as criminal and evil.

BOB GARFIELD:  But those are contradictory, are they not? [LAUGHS]

GABRIEL SCHOENFELD:  They are, to some degree, contradictory. They suggest that when the damage is so obvious, the state of mind, the intention is there. As the memo goes on to say. “It is hard to believe that any judge or jury would take a sympathetic view of his case. It was characterized by real turpitude and disregard of his obligations as a citizen.”

BOB GARFIELD:  Let's cut and paste that argument and apply it to WikiLeaks or Edward Snowden and The Guardian or anyone who is currently under the scrutiny of the government. If you can just, by reckless disregard for consequences, be found to have criminal intent, does that bode poorly for them and for journalists, in general?

GABRIEL SCHOENFELD:  Well, this 1942 document doesn't have any legal standing. It's a snapshot of what the Office of Legal Counsel was thinking about this issue in 1942, in the midst of a very hot war. So I think a modern Office of Legal Counsel looking at this kind of case might take a somewhat different view of it. And I think that, that the wrestling here with the intent might have to be handled somewhat differently. It does seem to be a little tangled.

BOB GARFIELD:  Now, I was astonished, actually, at the idea that no journalist has ever been prosecuted, for example, revealing troop positions or any other sensitive strategic or tactical information in the course of battle. I'm stunned that in the history [LAUGHS] of American wars, going back nearly three centuries, the nobody does blundered his way into a prosecution.

GABRIEL SCHOENFELD:  Well, I think that’s a great thing, but it also re – I think, reflects the government's reticence about prosecuting the press and respect for – out of respect for the First Amendment, because certainly there have been very damaging leaks that have occurred over the past decades, where a case similar to the one that the government began to mount against the Chicago Tribune in 1942 could have been mounted against the New York Times, say, for some of the stories it published. But the political cost would have been great, and we haven’t seen any  prosecutions.

BOB GARFIELD:  What happens if the government ever does prosecute the press for essentially aiding the enemy?

GABRIEL SCHOENFELD:  Well, I think it would set a terrible precedent, in a way, but perhaps a necessary one, if the press does something that endangers the American people. Fortunately, there's been restraint on both sides since the Chicago Tribune story for whatever dangerous, which have occurred are many other story. For whatever dangerous leaks have occurred, there are many other stories that the press has sat down, precisely because they’ve been told that loss of life might occur or our national interests would be damaged.

But, you know, we live in a very different kind of world now, where there are not just American newspapers covering our national defense establishment. We have British newspapers like the Guardian. The editors there are not really subject to the restraints that American editors are, or they think about  politics in a different way. And yet, they have free rein to roam around Washington and also uncover secrets.

BOB GARFIELD:  Gabriel, think you very much.

GABRIEL SCHOENFELD:  A pleasure to be here.

BOB GARFIELD:  Gabriel Schoenfeld is author of Necessary Secrets:  National Security, the Media and the Rule Of Law. His latest book is A Bad Day on the Romney Campaign:  An Insider's Account.      

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